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THE CLINTON EMAIL SCANDAL

As a former prosecuting attorney, I offer the following insights regarding the apparent resolution of the Clinton email scandal.

In pursuing a criminal case, discretion is exercised at various stages, beginning with whether the policing agency doing the investigation decides to arrest the suspect or otherwise refer the case to the prosecuting attorney who has the final say in whether the criminal charge will be filed in the prosecutor’s discretion or whether it will proceed based on the findings of a grand jury.

In reviewing the statement made by FBI Director Comey as well as viewing his testimony before Congress, Comey decided, for reasons that will long be debated, to subsume the prosecutor’s discretion by deciding to reveal that in the FBI’s view, there was no basis to criminally charge Hillary Clinton with a crime.

In exercising a prosecutorial function, we may assume that Comey did as most prosecutors do: he reviewed the evidence and concluded that it was insufficient to sustain a conviction under the applicable statutes beyond a reasonable doubt.

In fact, he concluded that two primary aspects of the case militated against charging Clinton with a crime: the applicable statute that would arguably make her actions criminal had never been used to prosecute anyone before with the additional implication in his testimony that the statute itself may be unconstitutional and that her actions, however reprehensible, did not contain the requisite criminal intent to sustain prosecution.

Prosecutors do have the discretion to decide whether they will prosecute under a particular statute or another or none at all. It is not enough to simply conclude that on the face of it, someone appears to have violated the law. The prosecutor has to take into account a myriad number of factors, including how he or she thinks a jury will ultimately decide a case which often involves more than a mere reference to whether the elements of the crime have been satisfied at some minimal level under a particular statute.

In this case, although there is some evidence that such prosecutions have, in fact, been pursued in the past, Comey decided that it would be fundamentally unfair to single out Clinton for prosecution by treating her as a special case as opposed to how someone of lesser stature would be treated. It will be argued, of course, that his view is subject to criticism on many levels.

More troubling, however, is the issue of intent. Under the relevant statute, Clinton’s actions could be subject to prosecution if she acted with “gross negligence.” That seemingly, on its face, removes intent, whether specific or general, from the determination of whether she violated the law. Comey, himself, undermined his own conclusion, by detailing, in the interests of full disclosure, Clinton’s actions which by any objective standard he characterized as “sloppy,” “careless,” and worse. Since over fifty percent of the American people believe Clinton should have been prosecuted, it is hard to imagine that a jury could not find she committed gross negligence in her handling of her emails, particularly when Comey indicated that it was more than likely that she and her staffs’ emails were hacked by foreign powers and conceded this could have jeopardized national security.

Finally, there is the additional issue of Clinton lying to Congress. Apparently, being aware of the pit fall of lying to the FBI (Comey concluded she had not done so while not being able to recall what she had been asked by his investigators), the FBI investigation clearly concluded that in testimony before Congress, Clinton had lied on a multitude of issues regarding her server and other matters concerning her emails.

When asked why he had not pursued criminal charges for perjury, Comey correctly pointed out that was not the focus of the inquiry and that if the matter of Clinton’s possible perjury was to be pursued, it would have to come after a request from Congress (which has now apparently occurred).

I, for one, do not believe there was or is any conspiracy on the part of Comey or the FBI with the Obomba administration or anyone else to compromise the investigation. I do believe, as many do, that Clinton did, in fact, violate one or more statutes and that she should have been prosecuted.

Even for those who disagree that she should have been prosecuted, it should give one pause to realize that a candidate for President was incompetent to the point of arguably violating the law and compromising national security. We have elected Presidents in the past who turned out to be corrupt and incompetent to the point of criminality. We have never, to my knowledge, elected a President who we knew was already guilty of these failings.

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HERE WE GO AGAIN

Another mass shooting, another call for more gun control. The Prexy says he is unabashedly going to politicize the issue, in calling for more…more…well, he didn’t say in his recent diatribe on the issue. We require gun collectors to have a federal firearms license to own certain so-called nasty weapons. We have background checks for most gun purchasers. In some cities, like Chicago, we have stringent gun control laws at the local level. We have year after year decline in gun violence according to FBI stats. And yet, we need more laws, more regulations to…to…well, we’re not sure what but something must be done. Right? If we restrict access to guns, if we restrict the number of guns people can own, if we limit the number of rounds in a clip, this has to help. Right? After all, the argument goes, why do people need so many guns? Why do they need automatic weapons? I mean, come on, what is wrong with all of you? In Australia, the government has solved the problem by confiscating all the guns. Of course, as some have pointed out, to confiscate all our guns in this country would probably take 100 years. And with the cartels, for example, pouring guns across our non-existent border with Mexico, that would pretty much guarantee only the bad guys would have the guns. We could, of course, authorize our governments to forget about the pesky issues of the First and Fourth Amendments and simply allow the police to randomly search everyone and every place for our guns. And, of course, we can ignore the facts that establish that places like Chicago have some of the highest gun violence stats in the world, let alone the country. And of course, we have that outdated concept of gun ownership, embodied in the Second Amendment. Do we really need to own guns in today’s society? Will we really need to raise a militia to protect ourselves in case we are ever invaded? After all, with our current foreign policy where we have disengaged, reduced our military and sit complacently behind our two oceans with apparently nothing to fear, is that likely? And why have guns to protect ourselves and our homes? The government will do that, right? We should enact more gun free zones and advertise their existence. That way, if some nut with a gun does go on a rampage, it will be in one of those places and the rest of us will be safe. After all, anyone who is stupid enough to go into a gun free zone deserves what they get, right? And trying to deal with the root causes of violence is just too difficult. It is much easier to deal with the instruments of violence than its root causes. The only problem I see is that after we take away everyone’s guns, these crazy people will have to resort to better weapons of mass destruction. Soon, we will have to start worrying about crazies blowing up whole movie theaters with bombs. But, what the hell, one problem at a time.

PRIORITIES

While we worry about such profound issues as whether the Topopo is too liberal or whether we ought to have separate bathrooms for transgendered students, our world is going to hell in a hand basket. As our Prexy opined about the threat of global warming on the Alaska shore, the Chinese and Russians conducted joint military maneuvers off that same coast. The Chinese are also building artificial islands in the South China Sea in an effort to exert complete domination over that region. While supporters of our current regime in Washington tout the twenty odd former military big wigs who believe the nuke deal with Iran will promise “peace in our time,” several times that number have condemned the deal, joining those, including a majority of Americans, who believe it will actually guarantee Iran will have a nuke and jump start an arms race in the Middle East. Mr. Obomba meanwhile diddles and fiddles and claims as he did in a recent press conference that Putin’s invasion of Syria in an obvious effort to prop up the brutal Assam regime puts Mr. P. on the “wrong side of history.” I can’t help but remember that Hitler was ultimately proven to be on the wrong side of history, as well. Problem was, we had to fight a brutal and costly war to prove that fact. If you join your Prexy and even current leading Repub prexy candidate, Donnie the Trump, in believing we can disengage from the world stage and sit behind the smallest military since 1940, you will be proven to the one who is on “the wrong side of history.” With all his supposed education, our current Prexy is apparently no student of history since he and his followers learned nothing from what unpreparedness will result in, to wit, inevitable war. Strength through peace has served us well for many decades and it will, by all reasonable opinion, take us decades to again achieve that after the disastrous foreign policy failings of this administration. I think our current Prexy’s indecisiveness is best explained by what he recently told some interviewer for Vanity Fair magazine: “I wear only gray or blue suits. I don’t want to make decisions about what I’m eating or wearing.” Apparently, that carries over to his indecisiveness on many other issues, as well. And with our current preoccupations, I’m sure someone will get around to accusing our Prexy of being a racist for not wearing black suits. After all, we must be politically correct until the very day the Chinese and Russians start marching through the streets of New York after they drop the big one on Israel.

ECONOMICS 101

Recently, one of my liberal friends wrote a letter to the editor of our local rag in Butte regarding all the advantages he thought raising the minimum wage would produce. The paper, being a liberal publication, readily printed his letter although I saw no letters from anyone in opposition which is usually the case for this particular publication. In any event, my friend argued the usual liberal philosophy that if we raise the minimum wage we’ll be “stimulating the economy” by causing more people to spend their new found wealth. In fact, economists indicate that because Americans still have no confidence in the economy, they are saving, not spending. The fallacy of this reasoning is now apparent as Bloomberg reports that Walmart, the nation’s largest employer, raised its minimum wage to nine dollars per hour with the result that “Labor costs…have weighed on earnings…. At the same time, Walmart is trying to maintain low prices to fend off rivals.” So, Wally’s World is now cutting employees work hours and “furloughing” employees which, in turn, is adversely affecting customer service. Older employees are also disgruntled over the raise in the minimum wage paid to beginning employees. “Some of the chain’s more senior employees have criticized the increase, saying it mostly benefited newer workers and that more experienced staff shouldn’t be making at or near what new hires are making.” Of course, investors are also upset because they expect profits from investing their monies in a business and could care less about social engineering in the name of some unrealistic liberal mantra. Just imagine what impact there will be on our already shaky economy if Wally’s World joins the slew of other businesses which used to be household words and have now faded from memory. Of course, liberals really have no problem with shrinking the private sector since they believe that the government is the answer to every problem. The fact that the government doesn’t provide a tax base since it produces nothing in the way of manufactured goods (or anything else of value it is increasingly argued) is lost on those who make their living by collecting a check from those who still work for a living.

LIBERALS IN TROUBLE

It always amuses me when uber liberals (is that an oxymoron?) turn on their own whenever their members fail to toe the narrow liberal perspective. Enter uber liberal Matt damon (small “d” on purpose) who made the mistake of saying that the director of a movie should be selected on merit not by racial profiling. Opps! The Left dutifully tore old Matt a new one. To his credit, Matt didn’t back down which at least shows he has more guts than a lot on the Right who immediately fall all over themselves whenever they are similarly criticized for some assumed gaff in good PC rhetoric. According to the accounts I read of the matter, Matt’s buddy ben affects had nothing to say about his friend’s error, although he once called, of all people, uber liberal Jon Stewart, a racist during one of Bennie’s rants. Then, we have some actress named emily blunt (no need to play with that last name) who recently questioned whether she had made the right choice becoming an American citizen after being born in Britain. Really? I suggest that since we now have authorities in Seattle going through peoples’ garbage to determine whether they are properly recycling or whatever and issuing them citations if they fail the test (citizens are now suing the city), we should add another layer to the federal bureaucracy by establishing the “Citizen Check Bureau” whose job would consist of policing citizens who make anti-American statements and relieving of them of their citizenship. Ms. Blunt and her ilk, including many of her Hollywood friends, could all move abroad and see how well they like living there. I suggest they start with Syria where they could undoubtedly help sort out all the problems there. Uh huh. I suppose the only positive aspect of Ms. Blunt’s path to citizenship is that she at least did it legally. Of course, since we have no coherent immigration policy under the current administration, then the new CCB will have the unfettered right to simply deport Ms. Blunt without a hearing. Decisions on deportation will depend entirely on executive order by the Chairman of the CCB, Donald Trump.

LOIS LERNER IS SCUM

Name calling is seldom productive. If you can’t prevail with reasoned arguments on the issues, then it is obvious that you haven’t thought enough about the positions you are advocating. Unless you are insecure in your own beliefs, you should respect the opinions of those who disagree with you. And finally, you should always keep an open mind. Maybe what you believe can be shown by others’ reasoned arguments to be wrong. But there are exceptions to these rules. When a person in a position of authority uses that position to penalize those with whom they disagree, that is reprehensible behavior. It is even worse if that person’s power derives from their position in a government that should be protecting the rights of all Americans. So, we have Lois Lerner who used her position in the IRS to penalize people with whom she disagreed politically. Even the most ardent liberal cannot rationally deny that this occurred. The latest revelations concerning the few emails recovered from Lerner reveal her strong bias against conservatives and particularly tea party types who applied for exempt status under tax rules. In fact, she stone walled them, denying the status otherwise awarded to groups she (and possibly others in the Obomba administration) deemed worthy of such exemptions. This was nothing more than using the power of the federal government to penalize political enemies of the current administration. While I am no fan of the so-called tea party, believing they do the elephants more harm than good, this misuse of power is not only reprehensible but down right scary. It is tantamount to the actions of the Nixon administration with Watergate when a paranoid prexy sent his minions on the prowl to get info to discredit his political enemies. Maybe to solve this problem, we need to change the system (a wish not a reality) by providing our prexys’ with one six year term. But one thing is certain: Lois Lerner is scum.

GLOBAL WARMING. AGAIN?

Okay, so let’s put aside our snide comments about Al Gore showing up to a rally protesting global warming in a giant gas guzzling SUV and consider the latest study from that icon of liberal thinking, Stanford, which admitted that the drought in California was not the result of global warming as argued for by my friends on the Left (with a capital “L”). What I have concluded is the following: Is there global warming? Yes. No less an authority than my own scientist son makes a compelling argument to support that thesis. And I can tell you that my son, as a scientist, has no liberal agenda. Second, are we evil human beings causing global warming? No. Very reputable scientists conclude that Mother Nature is still in control despite our egocentric arguments to the contrary. We are, many of my friends on the Left are surprised to learn, currently in an ice age. The history of our earth shows that we go through periods of cold and hot to put it in simplistic terms. Does man contribute to global warming? Yes. The Stanford study indicates that the role of man in the California drought, for example, has contributed to that drought. That makes sense when you take off your political blinders and look around you. All that exhaust haze in the air can’t be good for you or the environment. And it ain’t coming from Mom Nature. Is the immediate answer to stamp out all fossil fuel industries with the stroke of an executive pen? Well, I guess that depends on your priorities. If you want to destroy people’s lives by throwing them out of the already thinning work force and put them on the already bloated federal dole, then I guess it is worth it. Despite the fact that other nations, most notably China, could care less about the issue and will continue to poison the air, so to speak. For once, it would be nice if we could continue our inevitable march toward so-called “clean energy” with the realization that just as it took decades to create the problem, it will take another 50 to 100 years (as noted by other scientists) to solve the problem. Unfortunately, in our zeal to remain “politically correct,” intelligent dialogue is often lost in the translation.