Wait… you mean it’s not supposed to be rigged?

July 6, 2016

I don’t get too excited by political scandals. The large majority of them seem to be much ado about very little. But there are exceptions proving this rule, of course. I recall the day Richard Nixon left the White House. He wasn’t tarred and feathered… maybe because it would have been too good for him.

I’ll be very surprised, though, if the way Secretary Clinton and her staff handled e-mail correspondence was even a tenth as serious as Nixon’s crimes. Barring a revelation that the Clinton Foundation has profited from information Ms. Clinton leaked via insecure servers (always possible, I suppose) or some foreign government publishing emails that had been hacked from her servers (also possible), this looks like a bad decision made by a technically illiterate boss. And that’s hardly news; I mean, how many times does that happen?

Nonetheless, what the Secretary & staff did are accused of doing (and have kinda, sorta admitted doing) violated Federal law. Clinton rebuts FBI charge of recklessness, by the way.

So the contrast between how Ms. Clinton’s case has been handled and how Federal prosecutions of ordinary citizens are handled is striking. Innocent-until-proven-guilty applies to politicians too, so we’d need to wait for a judge or jury to convict her before we could say she’s guilty. But that can never happen if she’s never prosecuted, can it? The process was short-circuited in her favor.

As an example, here’s how the FBI treated a similar case last year for someone who wasn’t so favored. Folsom Naval Reservist is Sentenced After Pleading Guilty to Unauthorized Removal and Retention of Classified Materials.

And here’s an editorial from today’s Wall Street Journal. (My emphasis below.)

Jim Comey’s Clinton Standard
He shows how she broke the law then rationalizes no indictment.

For our money, the most revealing words in FBI Director James Comey’s statement Tuesday explaining his decision not to recommend prosecuting Hillary Clinton for mishandling classified information were these: “This is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions.”

So there it is in the political raw: One standard exists for a Democratic candidate for President and another for the hoi polloi. We’re not sure if Mr. Comey, the erstwhile Eliot Ness, intended to be so obvious, but what a depressing moment this is for the American rule of law. No wonder so many voters think Washington is rigged for the powerful. […]

Yep. Secretary Clinton violated the letter of the law in several occasions… no biggie. But don’t you dare get caught doing that.

Here’s a clip called the Email Scandal Supercut from Reason TV. Nice juxtaposition.

For reference, FBI Director Comey’s full press conference.

But the best question I saw about this was Warren Meyer’s. (My emphasis again.)

Hillary Clinton and “Intent” — Can the Rest Of Us Get A Mens Rea Defense From Prosecution?

Yesterday, the FBI said that Hillary Clinton should not be prosecuted because, though she clearly violated laws about management of confidential information, she had no “intent” to do so. Two thoughts […]

If politicians are going to grant each other a strong mens rea (guilty mind or criminal intent) requirements for criminal prosecution, then politicians need to give this to the rest of us as well. Every year, individuals and companies are successfully prosecuted for accidentally falling afoul of some complex and arcane Federal law. Someone needs to ask Hillary where she stands on Federal mens rea reform.

If you’re not familiar with the term mens rea, follow the link at the end of that snippet. Basically, los Federales can prosecute you for crimes without having to show that you intended to commit a crime or that you were even aware that you’d committed one.

Here’s an example (from this post):

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