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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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.

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.

Missing Common Sense

As the 2016 prexy election looms, it is hard to be optimistic that the recent trend of electing divisive candidates will end or lessen. It appears we have now morphed into an electorate made up of the Right which will elect a KKK member as long as he or she (hmm are there any female KKK members?) is an elephant and the Left which has an avowed socialist rising in the polls and a head of the DNC who cannot define the difference between a socialist and a donkey. According to the numbers, there are a few of us left in the middle who are being courted by the respective parties to choose between these polar opposites. It appears we have a nominee on the Left who is the epitome of what most of the electorate hates: a professional politician who embraces crony capitalism and lies whenever it is convenient to do so. Just today, my local liberal paper even ran a story contrasting Hilly’s speech against anonymous donations of money with the reality that she just received over a million from anonymous donors. On the Right, we have some sensible candidates like carly and ben but we have to leave their names in small letters because they are so far down in the polls, they hardly matter. Instead, we have Mr. Ego, Donny Strump leading the polls, a man so scary that putting him in charge of the nuke button would be akin to having it in the hands of Idi Amin Dada (or perhaps the Muddles of Iran). I can only hope that the elephants can come to their senses and pick a viable candidate to go up against the Clinton foundation. But don’t hold your breath.

WHOA!

Let me be clear: there is no reason to fly the Confederate flag on the grounds of any governmental institution. The best reason is that it represents a group of states which sought to end our Republic. It is akin to flying the Nazi flag, the flag of a foreign nation which also sought to destroy our Republic. Banning the Confederate flag, however, goes too far. While many see the flag as representative of racism, many others see it as a symbol of part of our history and a testament to those Americans who fought and died for it, whatever we think of their motivations. As a student of the civil war, it is important to remember that most of the Americans who died for the South were not slave owners. Many of the leaders in the South did not own slaves and were not comfortable with slavery. Some on the left have gone so far as to call for the dismantling of the Jefferson memorial because Jefferson, one of the architects of our Republic, owned slaves. This sentiment reflects an attempt to rewrite our history, not understand it. Defacing memorials to Southerners like Jefferson Davis will not bring our country together. Studying and understanding the times and the conflicts within our country during those times will do more to facilitate the maturity necessary to move ahead and continue our path toward racial equality. One of our current President’s avowed icons, Abraham Lincoln said it best when he said in his second inaugural address: “With malice toward none, with charity for all…let us strive…to bind up the nation’s wounds, to care for him who shall have borne the battle and for his widow and orphan, to do all which may achieve and cherish a just and lasting peace among ourselves….” Obviously, the families of the slain victims in Charleston got the message when they greeted the killer with forgiveness and compassion. We should follow their lead.

MEMORIES

I guess I used to be a pretty tough guy. I rode around in a police cruiser with a .38 strapped on my hip, approached a car full of suspected bank robbers supposedly armed to the teeth, sent criminals to jail who threatened my life, sent my family out of town after receiving death threats. Raced through the streets past charred bodies helping to save lives after an explosion in the little town I lived in at the time. You know, the usual. As I approach another Christmas putting me closer to my seventh decade though, I find I’m becoming a real softie. Now that I’m mostly retired, my main focus is finally on my family. I sit and watch movies that used to fire me up with patriotic vigor and now I shed tears when I think about my own children if they had to endure what the protagonists in the films go through. I constantly worry about the direction our country is taking because of how it may affect my children and grandchildren. And I get nostalgic as I remember little incidents about the kids growing up. Like my son, the Breckster, being festooned like a Christmas tree with toy guns and knives during his Rambo stage, his fuzzy blond hair putting the best Afro to shame (he’s bald now) or the time I first went to pick up later two time Arizona state gymnastic’s champion Tiffany. As I stood in the door to the gym, I watched all these little girls running full tilt boogie down this long mat to vault. One after another, they launched themselves into the air and crashed into the pummel horse and left bruised, beaten and in tears. Oh my God, I thought as I waited in sudden fear for Tiff to take her turn. And then it happened. She ran like the wind. And…made a perfect vault. Or the time I was recording on the video cam our Xmas decorated home and the sly Melinda who was supposed to be in bed, dressed in her pjs, popping up around corners to get in the video. Tragically, Christmas time is also the time when the suicide rate is high. But for many, including myself, it is a joyous time because I get to share the holidays with my three wonderful children and now my grandchildren. If I die tomorrow, I’ll go knowing that I’ve fulfilled the best thing in life which is bringing three wonderful people into the world, getting them educated and now being able to watch them prosper. Merry Christmas.