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.

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.

MOVING INTO MY SEVENTH DECADE

Moving into my seventh decade, I assiduously try not to comment from the perspective of “having been there and done that,” preferring to let the younger generation find their own way through this veil of tears known as life. It also helps to know that most young people could care less what older people have to say anyway. But, on occasion, I can’t seem to help myself when I read something so stupid it pisses me off. Falling prey to reviewing Facebook, I recently read a missive from an obviously uber liberal blogger condemning a presidential candidate’s (the candidate’s last name suggests a small plant growing alongside the roadway) advocating working hard to achieve success. The blogger spent an inordinate amount of space setting forth how hard we Americans already work, his apparent conclusion being that more work won’t improve our economy or our lives. There is a simple solution to his dilemma. First, don’t get an education or prepare for a specific skill set that will enable you to earn a living. Second, spend your time complaining about the success of others. This will inevitably lead you to resenting those who are successful and wanting what they have. Since you have no education or skills, you can advocate taking what they have. Some would suggest this is unfair but what do they know. Call it “income redistribution,” it sounds so much better than “highway robbery.” Third, in another nod to Robin Hood, taking from the so-­‐ called rich and giving to the so-­‐called poor, wait for the government to meet all your needs. Now, you’re set. You can spend all your time on the net while you wait for your welfare check or other form of governmental largess. Of course, as more and more of you do so, there will be less and less of those who still work for a living. Since government produces no widgets, it can only raise money by borrowing, taxing the private sector or printing money. When the latest form of “ism” finally runs its inevitable course, don’t be surprised when your fellow citizens start burning themselves in the streets, like the Greeks, when the flow of governmental largess finally runs out. When I worked, I paid no attention to how many hours I worked. I often worked seven days a week. All I was concerned about was getting the job done and supporting and educating my family which I am proud to have accomplished. My oldest is a PHD and a lead professor of biology at a college, my middle is a Hollywood publicist and my youngest is an international tax lawyer. And they achieved their success with long hours and hard work. You can achieve the alleged “American dream,” whatever that means but you won’t do it unless you apply yourself and stop worrying about what others may or may not do.

MS. JENNER

A former retired male athlete has decided to and has become a female retired athlete. Since the athlete in question has become, since her retirement, a celeb, the press has done the story to death, as would be expected whenever there is the possibility of controversy. My initial reaction is a big “ho hum.” With all the important issues facing us, a sex change operation by anyone would seem to have a very low priority for concern. While I respect my religious brethren’s right to believe what they will, I don’t see issues of gender identity having any adverse effect on the war on terror, the Chinese hacking our computers to death, Iran getting and possibility using an atomic bomb, the NSA stealing our personal information, the IRS going after our citizenry for political purposes, lying by our President and so on. As to the argument that such behavior somehow underscores the perception that our society is moving away from the traditional values which allegedly made this country great, that is a moral position that cannot be supported objectively. Gay people are productive members of society: they have no corner on crimes committed or harm done to others. In essence, their sexual identity is just one aspect of who they are as people. And, if we are really going to hold ourselves out as being traditionally moral Americans, their differences should be respected. As for the coverage, Kathleen Parker, a columnist for the Washington Post put it best when she wrote: “the media’s group embrace of Jenner’s transition should be seen for what it is–not a revolutionary step toward minority rights, but a money grab for ads, ratings, sales and buzz in a culture of provocation and greed without ethics or conscience. Let’s talk about that instead.”

POLICE

I remember when the so-called “War On Poverty” was initiated by prexy LBJ. Although it wasn’t labeled then as “a liberal progressive agenda,” it fit the definition as it promised we would tackle the roots of dissension, disenfranchisement, fatherless families and other ills resulting in reservations in our inner cities known as “ghettos.” We would use the federal government’s vast resources to restructure our cities. Today, however, this experiment has clearly failed as statistics show. Most studies conclude that we have just as much if not more of these problems even though we have poured millions into addressing these ills. Baltimore is a prime example. The Obomba admin poured millions into trying to improve the city. The city has a Black mayor, police commissioner, prosecutor. The result? Riots and chaos in the street, the destruction of property in the very neighborhoods where businesses need to flourish, not be destroyed. For their part, the police have been made the scapegoats for the failures of the politicians who refuse to crack down on lawlessness and promote private ownership of businesses and the creation of meaningful jobs through the private sector. And where we treat the police as the enemy instead of part of the solution, the predictable result is more crime, more innocent people being killed and maimed. The murder rate in Baltimore is skyrocketing. With liberal icon DeBludgeon in NYC, wiping out stop and frisk, along with giving press conferences in which he says he is afraid his own son will be targeted by police, it is no wonder that violent crime is also increasing in the Big Apple. As someone with some familiarity with law enforcement, it is small wonder that cops are backing off when they know that the slightest miscue or perceived miscue will result in their own censorship, up to and including arrest and prosecution over any incident that will further inflame anti-cop rhetoric. We are in the midst of a breakdown in civil authority that will only get worse. While cops are people and therefore subject to error, the answer is not condemning police who are the first line of defense in maintaining order but condemning politicians who have ignored and worse, profited by upholding special interests that wrecked our inner cities. And throwing tax payers’ dollars into the mix, without responsible leadership, hasn’t nor will it ever solve the problem.