Thursday, July 7, 2016

A Uniquely American Conundrum

When it comes to evaluating prosecutorial discretion, count me out -- my career for 45 years has been in the civil law. (Although I was fortunate to learn criminal law from a new and then very young Professor Alan Dershowitz.)

So I am reluctant to enter the prosecutorial debate between FBI Director James Comey and a former colleague of his, Andrew McCarthy, over just what kind of charges each would recommend be brought (or, in Comey's case, not be brought) against former First Lady, U.S. Senator, and Secretary of State -- and prospective Democratic presidential nominee, Hillary Rodham Clinton. There are strong arguments on both sides. That said, it might have been better for someone further up in the chain to make the decision -- such as a federal grand jury.

I do believe that Director Comey is being truthful when he swore that this was his (and his senior FBI investigators') decision alone, with absolutely no input from the Department of Justice or the White House. Had there been some dissent in the FBI's ranks from Comey's recommendation, there would have been some publicly announced resignations by now. And there has been none.

So Director Comey and his senior staff gave Attorney General Lynch and President Obama -- to say nothing of Hillary Clinton -- a huge gift, all wrapped up in the ostensible independence which they had promised to extend to him. But the FBI's decision, and the unseemly haste with which AG Lynch accepted it and closed down the investigation, still leaves unresolved a major conundrum.

A uniquely American conundrum.

The conundrum is just this:

1. Director Comey's press conference, which he self-organized to announce his decision, eviscerated Hillary Clinton's credibility (if indeed she had any shreds remaining). Just have a quick look at this expertly prepared video from the folks at Reason TV:

2. And as he admitted during his appearance before the House Government Oversight Committee this morning, any employee of his at the FBI who treated classified material the way that Hillary Clinton did through her unsecured private email server in her basement would face (among other sanctions) a loss of his or her security clearance. (Would you like to read the emails that went through Hillary's unsecured server? Just click here.)

3. Indeed, as the article just linked mentions, the State Department has now resumed its disciplinary inquiry into the handling of emails by Secretary Clinton and her staff (which was suspended to allow the FBI to complete its probe).

4. So as a former employee of the State Department who is still subject to its discipline, Hillary Clinton could lose her top-secret security clearance (along with her closest colleagues -- whom she might, if she is elected President, have liked to appoint to the National Security Agency, or similar jobs where top security clearance is a must).

Thus we come to the conundrum. Presidential candidate Hillary Clinton could (and by all rights should) lose her security clearance. (President Obama, however, could order it reinstated.)

Indeed, due to the ultimate power of the office, if elected President of the United States and commander-in-chief, Hillary Clinton could through executive order reinstate her own revoked security clearance, as well as that of any of her colleagues whose clearances had also been revoked.

The irony -- and heart of the ultimate conundrum -- is thus this. Despite the fact that the President of the United States can by executive fiat bestow and restore security clearances, it is the voters of the United States who will decide who will be the next US President.

So by deciding whether or not to make her the next President, the voters will at the same time be resolving the conundrum of whether or not, in their judgment, Hillary Clinton is qualified to be entrusted with top-secret data and information.

In other words, the ultimate decision as to Hillary Clinton's future ability to work in a meaningful capacity for the government is exactly in the hands of those who should have it. May they exercise their judgment wisely.


  1. She & D.Trump are due to get security briefings after the conventions.

  2. I think it is interesting that in such an important case that the FBI Director was not present at the "interview" with the former Secretary of State.
    I wonder who in the State Dept. will be in charge of the investigation?

  3. As a non-lawyer, who was a bureaucrat(with a clearance), I would add the following perspective. It is extremely unlikely that Ms. Clinton would have been prosecuted independent of Director Comey did. (Because of an eventual Obama pardon "in the interest of national healing" if nothing else.) Had Director Comey recommended prosecution, the details of the investigation could and almost certainly would have been withheld keep from biasing the grand or petit jury. The process would have ground on long after the election and the voters would never have known the investigatory findings until after the election, if at all. What Director Comey did was one (and perhaps the only way) to ensure that the investigatory findings were made public before the election.

  4. Comey worked on the Whitewater investigation by the United States Senate some 20 - plus years ago. Specifically, he was looking at the legal behaviour or lack thereof of Billy Jeff and Hillary. Various people went to prison due to conduct that was uncovered by several investigative entities. Among those who went to prison were an seated Arkansas governor and a Lt. Governor, plus the famous number three man at the United States Department of Justice, Web Hubbell (said to be one of Hillary Rodham Clinton's very closest friends).
    At the blessed end of the Clinton's first contamination of the White House, Hillary asked Bill to grant a pardon for 16 Puerto Riquen~o Activists who shot up the House of Representatives back in the 1950s and committed other acts of violence that left 15 or more people dead and many wounded. Hillary needed the Puerto Rican block vote during her run for Senator from New York, and Bill complied, after Hillary managed to extract a major contribution for the future "Clinton Foundation".
    But, Comey did a one up on that, by forging an alliance with good ole' Eric Holder to lubricate Marc Rich's pardon via a 450,000 dollar contribution from Rich's "ex"-wife to the future "Clinton Foundation".

    The thing is, Comey had a long record of providing legal assistance to Hillary, Bill, and their "charitable endeavours". This last re-enactment of the Pilate's self-disculptory defense by Comey rings like a bell with no clapper.

    The commentary and text of this entry by our host, guide, and leader, is as usual, excellent.
    El Gringo Viejo