RUTHFULLY YOURS

FBI director James Comey’s explanation of the case against the case against Hillary Rodham Clinton — “Sure, she pretty clearly did what she’s accused of doing but hey man aren’t penguins cute is that a squirrel man hey check it out a squirrel!” — is a fascinating floor routine of intellectual gymnastics in and of itself, dissected in these pages by several very fine lawyers and others with much more of interest to say on the strictly legal question than I have. But it is worth considering the context.

The context is this: America is a lawless state.

Comey spelled out in some detail exactly how Mrs. Clinton broke the law before all that oogedy-boogedy about how she didn’t really break the law. That must be a source of some amusement to Tom DeLay. DeLay, you may remember, was the House majority leader, a Republican, who was indicted on charges stemming from violating a law that had not — concentrate on this for a second — even been passed at the time he was alleged to have violated it. DeLay was driven from office, politically and financially ruined, and damn near jailed before the case was laughed out of court — years later, of course. We’re hearing a lot just now about “mens rea,” the legal principle that criminal culpability requires the positive intention to do wrong. That this should get Mrs. Clinton off the hook is questionable — she clearly set up her illegal private e-mail server for the purpose of obstructing the State Department’s ordinary legal oversight — but, in any case, it was no obstacle to the indictment of DeLay on charges that he willfully violated a law that had yet to be passed. DeLay, once a pest-control man by trade, was derided as “the Exterminator” by his enemies. It should have just been the “Terminator,” with prosecutors in the present going after him for laws passed in the future.

Mrs. Clinton’s non-exoneration exoneration must be of some interest to former Texas governor Rick Perry, too. Mrs. Clinton cannot be indicted on plain evidence, but Perry was indicted on felony charges for — in case you have forgotten — vetoing a bill. Texas has a special prosecutor for political corruption, a woman who has a terrible problem with drinking and driving, and who was arrested on DUI charges and subsequently videotaped threatening to use the powers of her office, which are fearsome, to have police personnel jailed — jailed — for refusing to give her special treatment. Perry argued that this woman had no business being in charge of a public ethics office, being, as she was, the most notorious violator of public ethics in Texas at the time, which is no small thing. He said he would veto funding for her office so long as she remained the head of it, and followed through. His case was eventually laughed out of court, too, but not until he’d been obliged to open his presidential campaign with felony indictments hanging over his head, specious as they were.

The ambush-style mass shooting of cops in Dallas, Texas, last night makes it clear that it is time for the dangerous, anti-American insurgency called Black Lives Matter to be designated a terrorist organization for fomenting a war against the nation’s law enforcement officers.

As FrontPage went to press early Friday morning, five Dallas area police officers were dead, systematically slaughtered by snipers.

That makes it the deadliest attack on U.S. law enforcement since Sept. 11, 2001.

There were conflicting reports about whether the snipers were captured by police. The officers were killed during a demonstration in downtown Dallas against police brutality that leftists say is directed at black Americans as a matter of government policy. Similar marches and rallies took place in other cities, including New York, Oakland, Calif., and Denver, Colo.

Of course, murdering police officers has long been encouraged by activists with the Black Lives Matter cult, with the support of the activist Left. A year ago Nation of Islam leader Louis Farrakhan, who openly advocates the mass murder of whites, called for “10,000 fearless men” to “rise up and kill those who kill us.” Like many radicals, Farrakhan mischaracterizes Black Lives Matter as a rising civil rights movement.

President Barack Obama, who a decade ago promoted inter-racial warfare in Kenya, has long tried to provoke civil unrest here in the U.S. with his hateful anti-cop rhetoric and his relentless demonization of opponents. His goal is fundamental transformation of the United States. A Red diaper baby who identifies violence-espousing communist Frantz Fanon as an intellectual influence, he has also steadfastly refused to condemn the explicitly racist, violent Black Lives Matter movement. In fact Obama has lavished attention on the movement’s leaders and invited them to the White House over and over again.

On July 1, 2016 the title of a Washington Times published report, “Nearly 1 million immigrants – including more than 170K convicts – ignoring deportation,” makes clear that the term “immigration law enforcement,” under this administration especially, is an oxymoron.

Reportedly 170,000 of these aliens have serious criminal histories and pose an immediate threat to the residents of the towns and cities where they live and may continue pursuing their criminal “careers.” “Sanctuary cities” that shield them from detection by the federal government may attract these aliens, thereby endangering their decent law abiding residents. A recent article published by the Discovery Institute, “Sanctuary Cities Can Provide Safe Havens For Terrorists,” focused on the threats sanctuary cities pose to national security and quoted from one of my recent commentaries.

My recent article, “Obama’s Victims: Released Criminal Illegals Commit Rape, Murder, Molestation” explained how the administration’s malfeasance has undermined public safety and has resulted in more innocent people being assaulted and killed.

The laws of nature are immutable; the speed of light does not depend on a cop with a radar gun and a summons book. Our legislated laws, however, are meaningless and worthless if they are not enforced.

Law enforcement is a labor-intensive job. In order for law violators to be punished for their transgressions their crimes need to be discovered and they need to be identified. It is essential that an adequate number of law enforcement officers are “out there” to do this work and to make the physical arrests.

Today there are likely fewer than 3,000 ICE (Immigration and Customs Enforcement) agents actually enforcing our immigration laws. More than half of the estimated 6,000 ICE agents are dedicated to enforcing our customs laws which have nothing to do with immigration law enforcement. To put this in context, there are more than 20,000 Border Patrol Agents, more than 45,000 employees at the TSA. NYC has more than 35,000 police officers protecting the “Big Apple.”

Simply stated, in this life and death “game” of hide and seek, there are precious few agents seeking an overwhelming number of aliens who are hiding.

During his remarks at the House Oversight Committee hearing Thursday morning, a fiery U.S. Rep. Will Hurd (R-TX) ripped Democrats for not taking national security issues seriously and gave FBI Director James Comey a thoughtful grilling about the FBI investigation of Hillary Clinton’s email practices while secretary of state.

Hurd’s Q & A followed the clownish antics of Rep. Connolly (D-VA), who had just smugly referred to the hearing as “political theater,” and somehow managed to blame it all on Donald Trump.

“I’m offended,” Rep. Hurd said earnestly. “I’m offended by my political friends on the other side of the aisle who claim this is political theater. This is not political theater.”

Hurd, a former undercover CIA agent who was stationed in Washington, D.C., and also served as an operations officer in Afghanistan, Pakistan, and India, didn’t take kindly to the Democrats’ treacherous messaging.

“For me, this is serious,” he said. “I spent nine and a half years as an undercover operative in the CIA. I was the guy in the back alleys collecting intelligence, passing it to lawmakers. I’ve seen my friends killed. I’ve seen assets put themselves in harm’s way. And this is about protecting information – the most sensitive information the American government has, and I wish my colleagues would take this a little more seriously.”

Hurd demonstrated his fluency with national security issues with a line of questions regarding our nation’s intelligence programs: “S.A.P. Special Access Programs you alluded to earlier — that includes SCI information, Does SCI information include HUMINTs [human intelligence] and SIGINTs [signals intelligence]?” he asked the FBI director.

“Yes,” Comey answered.

Hurd explained that such intelligence is some of the most sensitive information we have to understand what terrorist organizations are planning and doing, and it is gathered by people who “put themselves in harm’s way to give us information to drive foreign policy.”

In questioning by Congressman Trey Gowdy (R., S.C.), Director Comey seemed to concede that the statute criminalizing the mishandling of classified information through gross negligence may well be constitutional. That cuts against his testimony throughout the hearing, during which he argued that prosecuting a serious offense without requiring proof of an intent to cause harm would violate American tradition and, quite possibly, the Constitution.

The director maintains, however, that using the statute to prosecute Mrs. Clinton would be inappropriate even if the statute is valid. This, he reasons, is because the statute has only been used once since its enactment in 1917. The idea is that using it against her would amount to unlawful selective prosecution.

I am puzzled by this argument for several reasons, but I will limit this post to just one of them: The fact that the statute has been used repeatedly in military prosecutions – and that at least one military court decision undermines arguments Director Comey has made about the state-of-mind proof required.

The military prosecutions for gross negligence in the mishandling of classified information were discussed by former Attorney General Michael Mukasey in a Wall Street Journal column following Director Comey’s press conference on Tuesday. While it is certainly true that the FBI does not handle such investigations, the military courts are part of the United States justice system. Military cases litigate many of the same statutes and precedents (especially, Supreme Court precedents) that are applicable in the civilian justice system.

One relevant military case, United States v. McGuinness, is from 1992 – hardly ancient history. It involved a navy operations specialist sentenced to two years’ confinement (and other penalties) because, over his years of service, he retained 311 “classified items” unsecured in his home. While he was charged under Section 793, it was not under subsection (f) – the subsection of the statute most relevant to Mrs. Clinton, involving the grossly negligent mishandling of classified information – but under subsection (e), which criminalizes willful mishandling of classified information. Nevertheless, the case is highly relevant to our consideration of Director Comey’s recommendation against prosecution.

The defendant in McGuinness claimed that he merely intended to keep the classified items as personal reference materials, not to improperly disseminate them. Thus, he contended that willfulness, the mens rea (state of mind) proof requirement in Section 793(e), was legally insufficient. It was not enough, he insisted, for the prosecution to prove he had knowingly violated a legal duty regarding the safekeeping of classified information; the government needed in addition to prove bad faith – meaning: that he intended to do harm.

Obviously, this is very similar to Director Comey’s theory that, in a Section 793(f) case, it is not enough for the prosecution to prove mere “gross negligence,” even though that’s what subsection (f) says. The director claims the statute should be read to require additional proof of an intent to cause harm.

FBI Director Comey’s legal theory that gross negligence is constitutionally suspect as a mens rea (state of mind) element of a criminal statute – such as Section 973(f) of the federal penal code, the statute at the heart of Hillary Clinton’s mishandling of classified information – was shown to be flawed by the questioning of Rep. Thomas Massie (R., Ken.).

Rep. Massie made the point (explained in my earlier post) that every state in the United States has a law criminalizing negligent homicide – i.e., causing death by negligent conduct in the absence of an intent to cause death. Director Comey quibbled over whether all 50 states have such laws (and I plead guilty to assuming this is the case but not taking the time to check it). Eventually, though, Comey acknowledged that, yes, it is very common for prosecutors to charge and courts to sustain negligent homicide cases in which there is no requirement to prove that the defendant intended the harm caused.

In earlier questioning, another member of the committee pointed out that there is strict liability – no need to prove intent to violate the law – in a number of petty offenses (e.g., speeding). But Comey replied that petty offenses were in a different category from grave offenses like mishandling classified information. While this is true, he extravagantly implied that what makes them different is that all serious offenses require proof of intent to cause harm.

Yet, as I pointed out earlier, homicide is a grave offense; yet, negligent homicide is routinely charged. Defendants are routinely convicted. Courts routinely uphold the convictions.

When Rep. Massie made this point, Director Comey’s response was that he was more familiar with the federal system, while negligent homicide cases are state offenses.

FBI Director James Comey declined to comment on a possible ongoing Clinton Foundation corruption probe during his testimony today before the House Committee on Oversight and Government Reform.

Asked by Chairman Jason Chaffetz if he had “looked at the Clinton Foundation,” Comey answered, “I’m not going to comment on the existence or non-existence of any other investigations.”

Asked if the Clinton Foundation was tied into the email investigation, Comey simply said, “I’m not going to answer that.”

In January, Fox News reported: “The FBI investigation into Hillary Clinton’s use of private email as secretary of state has expanded to look at whether the possible ‘intersection’ of Clinton Foundation work and State Department business may have violated public corruption laws, three intelligence sources not authorized to speak on the record told Fox News.”

The possibility of an ongoing public corruption probe was reportedly one of the issues Chaffetz questioned the FBI director about after Comey’s statement on Tuesday. He was brushed off at that time, too: “I can’t tell you about that yet,” Comey told Chaffetz.