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.



In the original Die Hard film, the chief bad guy was named “Hans Gruber.” Now, it seems he has an evil twin operating in the real world. It seems that John or Jon, however he spells it, Gruber, an MIT prof and the principal architect of the Affordable Health Care Act, has been making lectures over the last several years admitting that the AHCA was drafted to be incomprehensible so its aim of redistributing wealth through a massive tax could be hidden from the voters. Oh and Mr. G. is caught on tape, not once but three times (so far) calling the voters too stupid to catch on to the deception. That is because, he readily admits, if the American people knew it was a tax, they would have never accepted it and not even the Donkeys would have voted for it. At some 2500 pages, not even the Prexy read it. Now infamously said by none other than that wise and intelligent then leader of the House, “We’ll have to pass it so we can know what is in it,” or words to that effect. It is so repugnant to hear that quote I have since tried to forget it. Finally, someone revealed the first tape and Gruber appeared on MSNBC (where else) and tried to pass off what he had said as an unintended gaff, spoken “off the cuff.” The problem with that excuse is that he said it many times. Perhaps, as some wags on the right have suggested, we should salute, not condemn Mr. Gruber for telling the truth. Sorry, I am not in that camp. Contrary to the lies perpetrated by Mr. Gruber and his president, millions lost their health insurance, got inferior health insurance at higher rates, lost their preferred doctors and face higher deductibles they can’t afford. And despite admitting the lies and deceptions, Gruber still maintains that the end justified the means. It reminds me of those who criticize those who conclude that it is okay to spy on our citizens because in the interest of security, the ends justify the means. Or water boarding prisoners because the ends justify the means. In the interest of pursuing evil aims, dictators, commies, fascists and others who kill, maim and mutilate have always justified their actions on the same argument: the ends justify the means. And never mind that the American people oppose the AHCA. In the elite circles in which Mr. Gruber obviously travels, he has embraced the “nanny state” in which he and his intellectual equals have to tell the “stupid” people in our country what is right for them. After all, we are too “stupid” to figure out what form of health care might be best for us. Finally, I take the time to share this story with you because the main stream media has said nothing about it. That is, of course, because it doesn’t fit their liberal agenda. God forbid they get caught criticizing their pet prexy.


    My late mother, an RN and my wife, retail merchant, newspaper editor, legal assistant and certified fiduciary chose to be working mothers. It was their decision. A decision that should be respected. Which brings me to the remarks of a woman high in the Obama reelection campaign who recently opined that Ann Romney shouldn=t be giving any advice to her husband during his presidential campaign because as a stay at home mother, she had Anever worked a day in her life.@ The implication of those remarks is clear: a woman who chooses to Astay at home@ to raise a family is a dummy, a woman who is unintelligent, uneducated and therefore a person who=s opinions should not be taken seriously. That sound you hear is me. Taking a deep breath to control my anger. I know several so-called stay at home mommies. They work damn hard. They learn to schedule better than a top CEO; they deal as well with emotional issues as the best human resource people; they juggle finances with the kind of aplomb a bank president would envy. Just as working mothers should be respected for their choices, so should those mothers who choose a different life style. To denigrate any woman for the choices she makes is insulting and sexist. After all, you don=t hear men being criticized if they choose to stay home while their wives work which is happening more and more frequently as statistics show, for example, that it is women who are now graduating from college in larger numbers than men. If there is a Awar on women@ as some on the left claim, then it appears it may be those people who are perpetuating it.


The other day, I read on the net that a person born a male who had undergone a sex change operation and was now a female, was denied admission to a beauty pageant because she had been born a male. (She has since been granted admission.)

Putting aside the issue of why any intelligent person would want to compete in a so-called “beauty pageant”, it reminded me of Sylvia.  Of course, Sylvia is not her real name.  I first met Sylvia when she came into my law office.  She had been forced to initiate a law suit over a wrongful termination.  During our conversation, she reluctantly admitted she was a lesbian.  I assured her that should make no difference in her claim since that was not the reason for her termination and, in fact, when we later settled the case to her satisfaction, my assumption in that regard proved correct.

During the course of representing her, we became friends and she later became the best doctor I’ve had to date.  She also became Kathy’s doctor and until her retirement, she consistently gave us sound and professional medical advice and treatment.

I’ve had other friends who were “gay”.  What I verified is that people with different sexual orientations are no different than you and I (assuming you’re not gay).  While sex is an important aspect in most of our lives, it seldom alone defines who we are as people.  My gay friends have consistently proven to be no different than anyone else in our society.  They have the same fears, the same joys, the same problems, disappointments and triumphs in their lives as we so-called “straight” people do.

There are religions that maintain that if you do not believe as they do, you’re going to Hell in a hand basket.  Since I am not a member of those religions, that means me.  I can live with that possibility because I believe that if there really is a God, she has to be more tolerant than some of her disciples.  I continue to believe as fervently as my friends who are members of such religions that if a person lives a moral life and treats people with deference and respect, they’ll make the promised land if there is one.

I don’t ask my religious friends to change their beliefs; I only ask that they concede they could be wrong and that they give good people the benefit of the doubt by respecting and celebrating their differences, not condemning them for those differences.

Political Discourse

The current lack of civility in political discourse is not, as those ignorant of history believe, worse than in former times. Having a congressman  yell from the audience during a Presidential address that the President is a liar is less onerous than having one congressman shoot another congressman on the floor of the chamber to resolve a debate, an incident which occurred following the Civil War. Nevertheless, does it really advance the agenda of either the left or the right by engaging in personal attacks on those with whom they disagree?  Barry Goldwater once famously opined that extremism in the defense of liberty is no sin. But is it? It seems that what we encounter, particularly in political discourse, is characterized by extremes in thought and action. I think that extremism is based on the idea, implicit in Goldwater’s remark, that if we believe we’re right in our political position, there is no room for debate. This is particularly true on so-called “social issues” like abortion, contraception and freedom of religion. In fact, dogmatic thinking is not thinking at all. It is nothing more than perpetuating blind belief which fosters ignorance and bigotry and gives rise to a lack of civility. Strident protestations peppered with ill tempered slurs on the opposition merely reveal the lack of faith the  speaker has in his or her own beliefs. People like Rush Limbaugh and Bill Maher would do well to keep that in mind.