What Is a ‘Reasonable Prosecutor’? By Roger Kimball
https://pjmedia.com/rogerkimball/2016/07/05/what-is-a-reasonable-prosecutor/
There has already been a tsunami of commentary about FBI Director James Comey’s remarkable performance today. Director Comey informed the world that he would not recommend that criminal charges be pursued against Hillary Clinton in the matter of her mishandling of classified material on her hombrew email system. There is much disbelief and anguish about this, a lot of it to the point. I think that my friend Andrew McCarthy was particularly astute with his NRO column. The title sums it up: “FBI Rewrites Federal Law to Let Hillary Off the Hook.”
Andy homes in on the gaping hole at the center of Director Comey’s argument. On the one hand, Director Comey allows that “there is evidence of potential violations of the statutes regarding the handling of classified information.” On the other hand, he found “no clear evidence that Secretary Clinton or her colleagues intended to violate laws.”
So, you might be asking yourself, what? As Andy points out,
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 admits all this, indeed, he took pains to lay it out carefully. But he concludes that because Hillary Clinton did not intend any harm by her negligent behavior, there were no grounds to recommend prosecution. “Our judgment,” he said, “is that no reasonable prosecutor would bring such a case.”
This makes no sense. Andy:
In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require. The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing. The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence.
How are we to understand Director Comey’s conclusion? Some commentators — my friends James Robbins and Roger L. Simon, for example — argue that Director Comey’s withering assessment will in the end be more damaging than an indictment because he has pointedly drawn attention to Clinton’s recklessness and incompetence. “Did Comey,” Roger asks, “Actually Destroy Hillary Clinton by ‘Exonerating’ Her?”
My sad suspicion is that the answer is “No.” Why? Because that would only be the case if there were sufficient public outrage to call her to account. Is there?
Cast your mind back over the many, many scandals the Clintons have been involved in: Whitewater, Travelgate, Vince Foster, cattle futures, Monica Lewinsky, etc., etc. Has anything ever stuck? As far as I know, the answer is “No.” CONTINUE AT SITE
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