The rule of law died a little last Tuesday when FBI director James Comey announced the Bureau’s findings concerning Hillary Clinton and her illegal email server. After a short speech in which he detailed the findings of the investigation, he recommended against charging her with anything.
You didn’t think it would happen any other way, did you? I certainly didn’t. As blatant as her lawbreaking was—some of which was not even discussed in Comey’s speech—it seemed fanciful to believe that Hillary Clinton, the ultimate insider, would actually do the perp walk. As a former First Lady, former senator, and former Secretary of State, she is for all practical purposes above the law. Her consciousness of this fact enables her bad behavior.
Comey’s rationale for not referring the Clinton case for prosecution defied all logic and, according to former assistant US Attorney Andy McCarthy, represented an on-the-spot revision of federal law. McCarthy wrote: “There is no way of getting around this: According to Director James Comey (disclosure: a former colleague and longtime friend of mine), Hillary Clinton checked every box required for a felony violation of Section 793(f) of the federal penal code (Title 18): With lawful access to highly classified information she acted with gross negligence in removing and causing it to be removed it from its proper place of custody, and she transmitted it and caused it to be transmitted to others not authorized to have it, in patent violation of her trust. Director Comey even conceded that former Secretary Clinton was ‘extremely careless’ and strongly suggested that her recklessness very likely led to communications (her own and those she corresponded with) being intercepted by foreign intelligence services.”
Yes, she did all of things and more. According to Director Comey, Hillary’s saving grace was her supposed lack of intent to break the law. She didn’t mean to do what she did, you see. There are two responses to this. First, yes there was her intention. Hillary Clinton didn’t set up her illegal email server by accident. She didn’t use it for all of her correspondence by chance. She didn’t wipe the server by bumbling error, an issue I noticed Comey did not even address. But the second response is even more important: intent is not the legal standard; negligence is. Even his whitewash investigation found that she and her staff were “extremely careless” with classified information. Carelessness is a synonym for negligence.
So Hillary will skate. Director Comey dished out the only punishment she will likely ever face—a stern talking-to. Start printing invitations for the Inaugural Ball—Hillary’s going to be our next president!
As I sat listening to Comey’s remarks, my mind wandered to President Gerald Ford, who inherited the office after the Watergate scandal. At his August 1974 inauguration, Ford tried to assuage the public’s anger with assurances that justice had been done. “My fellow Americans,” said the newly minted president, “our long national nightmare is over. Our Constitution works; our great Republic is a government of laws and not of men.”
Not everyone agreed with him of course. Richard Nixon was not charged with anything and he was in fact pardoned by the very man giving the speech. The disgraced president would retire to sunny California to write his memoirs and establish his presidential library. Is that justice? Many young people demanded to know why Nixon was getting a pardon when young men who had illegally evaded conscription were not. Not long after, President Ford offered a limited pardon to draft dodgers which his successor Carter expanded upon.
It should be noted here that at least Nixon paid some price: the not insignificant loss of his elected office. Hillary Clinton, on the other hand, is on the fast track to becoming the next president. That’s the difference.
Three years after Nixon resigned he sat for a series of interviews with David Frost, a British journalist and television host. Perhaps the most memorable quote came when Nixon said “I’m saying that when the president does it that means that it’s not illegal.” People were rightfully shocked.
Nixon’s governing philosophy, so in-eloquently blurted out on national television, is probably more common among powerful people than we’d like to believe. Though Hillary Clinton has never said those exact words, she conducts herself as if she believes them. Simply substitute “Secretary of State” for “president” and that’s basically her attitude. She can store top secret and special access program materials on a secret email server that is vulnerable to hackers. She can wipe that server when it is subpoenaed. When caught, she can lie under oath to Congress about the whole affair. She can stonewall investigators and throw a fit in hearings. “What difference does it make” if it’s illegal?
The rule of law is crumbling in this country. Like most nefarious phenomena, it’s difficult to pinpoint a starting point. Powerful people have been getting away with illegal behavior for quite a long time—but was it always this blatant? I don’t think so.
These days it’s all right out in the open. We’re starting to look like some kind of banana republic where this week’s junta leader rules by fiat. We’ve got a coterie of junta leaders, I suppose—the president, Supreme Court justices, a few powerful secretaries. But it’s the same crap.
Once you understand that laws are just a lot of useless paper, all of our endless squabbling seems pretty silly. What’s the point of learned men standing around in a courtroom arguing the finer points of the law when in the end it means whatever the judge decides it means? I was reminded of this last June when the Supreme Court ruled on federal Obamacare subsidies in King v. Burwell. I have to pity Michael Carvin, the attorney who represented the plaintiffs. Arguing a case before the Supreme Court is the pinnacle of any lawyer’s career so I’m sure he prepared for this case like few others. He must have practiced everything he was going to say and anticipated rapid fire questions. Even so, he probably entered the courtroom feeling confident that he would win because the risibly named Affordable Care Act clearly states that subsidies are only available through state-operated exchanges.
And then he lost. File it under lessons learned: It’s not good enough to have the law on your side. That’s actually quite irrelevant. You have to have the judges on your side.
In its majority opinion, the court found that where the law uses the unambiguous phrase “an Exchange established by the State,” it really means “or the federal government.” The justices thought they knew the intent of the law, and that’s all that really mattered. The majority concluded: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.”
Who cares what the law actually says? Let’s determine what Congress meant, rather than what was debated and voted on. In an odd turn of events, the Court handed down another opinion that same day concerning marriage. In Obergefell v. Hodges, the Court found that the Fourteenth Amendment, which was ratified in 1868, guarantees a right to same-sex marriage. Am I supposed to believe that the men who labored over, passed, and ratified that amendment intended to radically redefine marriage? It seems that intent is only important when it helps judges get where they want to go.
These people are just making it up as they go along. They decide the hot button issues of the day according to their preferences then go in search of a justification. No justification is too lame because they’re the supremes and we’re not.
This is the way we do things in America these days. The law isn’t really the law. Powerful people do whatever the heck they feel like doing and if the law gets in their way it is magically rewritten on the spot. Sometimes it’s the FBI director who decides to change the plain meaning of a statute. Sometimes it’s a judge. It can be the president, or even on occasion, a backroom bureaucrat. Beneath the tissue-thin pretense of an orderly, principled system, it’s actually just a naked power struggle—and we’re losing.