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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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.”

ALL IS NOT LOST

After a series of race riots perpetrated by Blacks after dubious claims of racism justifying such behavior, it would be easy to dismiss the Black community as racists themselves, particularly when the media covers the race baiting of such demagogues as Al Simpleton and Jesse Not Jacksonian. But that would be a mistake. In fact, what many people fail to realize is that although Black voters allow themselves to be continually exploited by one party who promises them much and delivers nothing, the vast majority of Black people share the same values as all other racial groups in society. Black men have served honorably in our armed forces since the civil war; Black people are some of our most religious members of society for those who value such ideals. Although Blacks disproportionally suffer from one parent families more than the national average, Blacks believe in family values as much as any other group of Americans. Nothing is a better example of how the majority of Black people are just as law abiding as any other American race than the response of the members of the slain Black people in Charleston, South Carolina. A sociopathic White racist went into a church and gunned down nine Black parishioners. The families of these victims are better people than I am. I would have given in to anger and a sense of vengeance; instead, they forgave the killer scumbag in open court at his bond hearing. Just as White people, in general, are not racist, it is important to remember that the vast majority of Black people are not racists either. Some day and I hope it’s soon, we will forget race, gender, ethnicity and other divisive influences and just accept people as people, good or bad.

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.

LOVE

As the best writer you’ve never heard of, at least when it comes to my novels (my own fault, I love the writing, hate the marketing), I am a keen reader of what other authors write which often inspires my own writing. I have heard that some authors never read anyone else’s writing, too afraid it may somehow influence their own writing, implying for the worse but having found my own “voice” (one of those “writer’s expressions”), I have no fear of that and admire without guilt or envy other writers who capture the perfect turn of phrase, just the right word or combination of words. So, I offer the following passage from one of my favorite writers, Dean Koontz from his novel Innocence in which his protagonist defines love. It is one of the best definitions I’ve ever read. And yes, I wish I had written it. “Love is absorbing, related to affection but stronger, full of appreciation for–and delight in–the other person, marked by a desire always to please and benefit her or him, always to smooth the loved one’s way through the roughness of the days and to do everything possible to make her or him profoundly valued.” Amen.

SUSPENSIONS

There are suspensions by organizations for bad behavior by their employees but not all suspensions are equal. Recently, a sideline reporter for a sport’s network was suspended when caught making nasty comments to a tow truck employee. This woman’s biggest mistake was lording it over the employee by citing her status as a supposed celebrity and even going so far as to criticize the employee’s personal appearance. Even though she apologized and may have been egged on by equally reprehensible language directed at her by the tow truck person, she was rightly suspended. But calls for her to be fired seem over the top. Contrast that with the grade school teacher that made her class write birthday cards to a convicted cop killer on death row. After her suspension she then attempted, when arguing she should be reinstated, to throw her students under the bus by arguing they wanted to send the cards. Yeah, right. It was the kiddies idea to send cards to a guy convicted of shooting a cop in the back and then making sure he was dead by putting one in his head. In fact, this “teacher” should have been fired, not just suspended. If people cannot see the difference between a rant by some sport’s reporter who was having a bad hair day and a supposed guardian of our impressionable children who uses her position to advocate for convicted killers, all of us are in big trouble.