The
Department of Political Justice
By Judge
Andrew P. Napolitano
July 07,
2016 "Information
Clearing House"
- Is it worth impairing the reputation of the FBI
and the Department of Justice to save Hillary
Clinton from a deserved criminal prosecution by
playing word games?
What has
become of the rule of law – no one is beneath its
protections or above its requirements – when the
American public can witness a game of political
musical chairs orchestrated by Bill Clinton at an
airport in a bizarre ruse to remove the criminal
investigation of his wife from those legally
responsible for making decisions about it?
How
hairsplitting can the FBI be in acknowledging
"extreme carelessness" while denying "gross
negligence" about the same events, at the same time,
and in the same respect?
These are
questions that now beg for answers in light of what
can only be the politically motivated FBI report
delivered earlier this week on the likely criminal
behavior of Hillary Clinton.
The
espionage statute that criminalizes the knowing or
grossly negligent failure to keep state secrets in a
secure venue is the rare federal statute that can be
violated and upon which a conviction may be based
without the need of the government to prove intent.
Thus, in
the past two years, the DOJ has prosecuted a young
sailor for sending a single selfie to his girlfriend
that inadvertently showed a submarine sonar screen
in its background. It also prosecuted a Marine
lieutenant who sent his military superiors a single
email about the presence of al-Qaida operatives
dressed as local police in a U.S. encampment in
Afghanistan – but who inadvertently used his Gmail
account rather than his secure government account.
And it
famously prosecuted Gen. David Petraeus for sharing
paper copies of his daily calendar in his guarded
home with a military colleague also in the home –
someone who had a secret security clearance herself
– because the calendar inadvertently included secret
matters in the pages underneath the calendar.
Yet earlier
this week, FBI Director James Comey – knowing that
his bosses in the DOJ would accept his legal
conclusions about Clinton’s failure to keep state
secrets secure, because they had removed themselves
from independently judging the FBI’s work – told the
public that whereas the inadvertence of the above
defendants was sufficient to justify their
prosecutions, somehow Clinton’s repeated
recklessness was not.
It is
obvious that a different standard is being applied
to Clinton than was applied to Petraeus and the
others. It is also now painfully obvious that the
game of musical chairs we all witnessed last week
when Bill Clinton entered the private jet of Comey’s
boss – Attorney General Loretta Lynch – unannounced
and spent 30 private minutes there with her at a
time when both he and his wife were targets of FBI
criminal probes was a trick to compromise Lynch and
remove her and her aides from the DOJ chain of
command regarding the decision as to whether to
present evidence of crimes against either of the
Clintons to a federal grand jury.
Why do we
stand for this?
The
criminal case against Mrs. Clinton would have been
overwhelming. The FBI acknowledged that she sent or
received more than 100 emails that contained state
secrets via one of her four home servers. None of
those servers was secure. Each secret email was
secret when received, was secret when sent and is
secret today. All were removed from their secure
venues by Clinton, who knew what she was doing,
instructed subordinates to white out "secret"
markings, burned her own calendars, destroyed
thousands of her emails and refuses to this day to
recognize that she had a duty to preserve such
secrets as satellite images of North Korean nuclear
facilities, locations of drone strikes in Pakistan
and names of American intelligence agents operating
in the Middle East under cover.
Why do we
stand for this?
Comey has
argued that somehow there is such a legal chasm
between extreme carelessness and gross negligence
that the feds cannot bridge it. That is not an
argument for him to make. That is for a jury to
decide after a judge instructs the jury about what
Comey fails to understand: There is not a dime’s
worth of difference between these two standards.
Extreme carelessness is gross negligence.
Unless, of
course, one is willing to pervert the rule of law
yet again to insulate a Clinton yet again from the
law enforcement machinery that everyone else who
fails to secure state secrets should expect.
Why do we
stand for this?
Andrew
P. Napolitano, a former judge of the Superior Court
of New Jersey, is the senior judicial analyst at Fox
News Channel. Judge Napolitano has written seven
books on the US Constitution. The most recent is
Suicide Pact: The Radical Expansion of Presidential
Powers and the Lethal Threat to American Liberty. To
find out more about Judge Napolitano and to read
features by other Creators Syndicate writers and
cartoonists, visit
http://www.creators.com . |