Above the Law

The Briefing, Vol IV, Issue 28-

This week:

  • Republicans’ hope of Clinton prosecution dashed
  • Others were punished for less than what Clinton did
  • Trump VP speculation

There is one set of rules for Hillary Clinton, and another for everyone else in America. That’s the message FBI director James Comey sent with his announcement and testimony on his recommendation that Clinton not face charges for the government transparency and government secrecy laws that she most certainly did break. But is this all good for Clinton, or will it reinforce the impression that she is a liar and that the system is rigged in favor of people like her?

Clinton non-indictment: Last week, FBI Director James Comey announced his recommendation — subsequently accepted — that the Department of Justice not prosecute Hillary Clinton for her extremely careless (as he put it) handling of classified information that put national secrets at risk.

But in doing so, he also pointed out a number of lies she had told, and made a rather strong unintentional argument that she deserved an indictment.

Note first that this takes away one of Republicans great hopes for victory in 2016. Many Trump supporters have been hanging their hat on the idea of that she would face a criminal prosecution. That’s over now. Clinton did lie to Congress and could face consequences for that, but it’s likely that many people (and many mainsream media editors) will write it off to partisanship.

As to Clinton’s get-out-of-jail free card, it’s an interesting case. There are at least three other examples of officials who were “extremely careless” with classified documents and subsequently faced prosecution. The two of these three who actually did time in prison were both officials who had accidentally brought classified papers home with them, then tried to hide it rather than owning up to the mistake. The one who did not serve time or go to trial was former CIA Director John Deutch, who was only spared prosecution because of a presidential pardon from Bill Clinton.

In the two cases where officials spent time in prison and saw their careers end in disgrace, the breaches seemed genuinely innocent. They tossed the wrong papers into their case or sack, and then upon realizing their error tried to hide it for fear of the consequences.

Compare this with Clinton’s breaches. Yes, she also got caught, but it wasn’t exactly something she could hide. The breaches occurred precisely because she was trying to defeat federal transparency laws, and that isn’t something you can hide forever, even if you can hide it until well after you’ve left office.

It is hard to overstate the significance of this fact: From the time of her first private email to the time her private server became national news, Clinton had concealed her work product from its rightful owners — the State Department and the taxpayers — for five years.

During those five years, journalists’ and citizens’ inquiries under the Freedom of Information Act could not be properly fulfilled, all because she did not feel the rules applied to her requiring a contemporaneous record of all work emails sent through private channels. This only happened because she was hiding something.

And in fact, both FOIA requests and congressional inquiries received incomplete responses precisely because she did not follow the law.

When you look at what people spent time in prison for, and what Clinton did, it’s quite clear that the cases are similar in many ways. The main difference is that Clinton’s problem arose not because of a one-time mistake, but because she was systematically breaking the rules on purpose.

There’s only one possible conclusion here: A different set of rules applies to the Clintons. Comey’s recommendation acknowledged “extreme carelessness” by Clinton with regard to a law whose standard for prosecution is synonymous with that phrase: “Gross negligence.” There is no requirement here for an intent to do wrong, and even then it’s at least plausible that Clinton did intend to do wrong when she chose to frustrate FOIA.

With respect to this question about ill intent, one need only look at all the lies Clinton told (and in fact continues to tell) in order to protect herself. Comey’s public statement was extraordinary because even in recommending against prosecution, he demonstrated that Clinton’s entire defense has been one lie after another for nearly a year and a half. Her assertion that she chose this arrangement in order to carry fewer devices was a lie. Her claim not to have sent or received classified information was a lie. Her claim that she handed over all work emails after carefully sorting them out was a lie.

Politically, this reinforces the first impression that the public had already formed about Clinton. She is dishonest and untrustworthy.

Trump Veep: Donald Trump has leaked word that he will announce his choice of running mate this week. Several figures under consideration — including Tennessee Sen. Bob Corker and Iowa Sen. Joni Ernst, have taken themselves out of consideration. But of course, would they say no if it were offered? Other people often listed as potential hopefuls, such as Oklahoma Gov. Mary Fallin, are not being vetted and therefore seem unlikely.

Aside from them, who is left?

Chris Christie: The first major GOP pol to throw his weight behind Trump. Christie has taken a lot of grief for this, and is very unpopular in his home state as a result, but you can’t question his loyalty.

Ted Cruz: Can you pick a running mate who (so far, anyway) won’t even endorse you? Someone who called you “despicable?” Some conservatives (such as Rep. Raul Labrador, R-Idaho) are calling for it, but it really doesn’t seem likely. Cruz is young and has a career ahead of him. Even if Trump is willing, he may not be.

Michael Flynn: You might think it a stretch for a Republican nominee to choose a pro-abortion running mate for his military background. (He is former commander of Joint Special Operations Command and DIA director.) It is a stretch, even in the era of Trump. Remember that even if Trump wants him, he has to persuade a convention that is by no means stacked with Trump loyalists.

Trump’s victory at convention is all but guaranteed. So why risk fighting the delegates and possibly even losing on something like this? It’s probably a safer move to pick someone Trump can live with who also mollifies restive conservatives. If he goes with Flynn, things could very interesting in Cleveland.

Newt Gingrich: He’s the safest bet, but don’t put a lot of money on it. You may have noticed that Trump is not the most predictable guy.

By the time the presidential race had wrapped up in 2012, Gingrich had an unfavorable rating of 61 percent.

This might be considered a downside in most years. But this year, it puts him in the range of both presidential nominees — six points worse than Clinton, and one point better than Trump, by Gallup’s reckoning.

Gingrich may not be the most popular person in the running, but he does bring a first-class intellect, message discipline (something in which Trump may or may not be interested), and a willingness to stand by Trump that some other Republicans don’t share.

Mike Pence: This seems highly unlikely, if only because he’s in the middle of a re-election campaign for governor. (Unlike most states, Indiana holds its state races in presidential years.) Pence also backed Cruz in his state’s May 3 primary.

On paper, of course, he is good choice to make the ticket more conservative. He’s popular with the Christian Right for creating state programs for school vouchers and pregnancy care centers. But he’s not especially popular in his own state and faces a tough re-elect race as it is.

Rick Perry: The former Texas governor left the campaign with a warning message about Trump’s noxious effect on American political life. He said Trump would lead the GOP to “perdition.” He then resurfaced months later with an endorsement of Trump. Kind of hard to pick someone in those circumstances.

Brian Sandoval: The moderate governor of Nevada would be an interesting choice, although he has all the same drawbacks as any other moderate. Still, it might not hurt Trump to have a first potential Hispanic VP on his ticket. Of course, Sandoval has said he’s not attending the convention. Would he change his mind if he were asked to be Trump’s running mate?