Hillary Clinton served as the U.S. Secretary of State from January 21, 2009 through February 1, 2013. She has not been the Secretary of State for 1252 days. That is a few days more than 40 months. Using a private server to send and receive emails was not a secret during her four years in office. It’s also been a known fact since then to many, many people. Time to put a fork in this one!
I offer the foregoing facts because I can’t get my mind around the notion that open and obvious acts—taken over years, and years ago—support a prosecution. That challenge raises two issues for me. First, what is the purpose associated with criminal laws? Second, what bout prosecutorial discretion?
Harvard Law Professor Henry Hart—a rock star professor in his day, long before terms like “rock star” got used—wrote The Aims of the Criminal Law for the Duke Law Review in 1958. It’s a long and complicated essay, but in his second paragraph he writes:
[a] penal code that reflected only a single basic principle would be a very bad one. Social purposes can never be single or simple, or held unqualifiedly to the exclusion of all other social purposes; and an effort to make them so can result only in the sacrifice of other values which also are important.
On prosecutorial discretion, Stephanos Bibas, a former federal prosecutor who teaches at the University of Pennsylvania Law School, wrote The Need for Prosecutorial Discretion in 2010. He sums up well how laws ought to work when he writes:
As Justice Scalia famously put it, we think of “[t)he rule of law as a law of rules.” Rules should be clear, general, stable, announced in advance, applied prospectively and consistently, and capable of being followed.
There is also the matter of criminal matters getting handled promptly. The 6th amendment to the U.S. Constitution provides for speedy trials. The rule does not apply here, but the principle does: a criminal justice system which moves too slowly is not just.
So, what? First, I read Fact Check: Hillary Clinton, Those Emails and The Law by Domenico Montenaro. He is the National Public Radio politics guy. Frankly, I got lost. Now, I’m not a criminal law expert, but I read statutes every day, and I know how to interpret them. And I also know that, in matters criminal, the government must meet very high standards, both with respect to evidence and law. There’s no gray when liberty is at stake!
For all of the certainty among those who comment in the ether, these laws are not clear. Not clear enough, for sure, to support a criminal conviction, given the facts at issue here.
Second, Secretary Clinton did not set up her server one evening, all by herself. And every bit of evidence supports the fact that lots and lots of people knew what she was doing. Those facts are wholly inconsistent with a belief on anyone’s part that she was committing a crime.
So where does this leave us? Secretary Clinton will not be prosecuted because the FBI does not believe she committed any crimes. There will be a referral to the FBI. According to Representative Jason Chaffetz (R-Utah), the chair of the House Oversight and Government Reform Committee, the FBI must determine whether she lied to Congress during her 11+ hours of non-stop testimony. And when the FBI reaches the conclusion that there’s “no there there?” There will surely be something else on which our elected representatives can waste time and money.
In the end the email matter really involves judgment. Secretary Clinton used poor judgment, although she handled emails the way her two immediate predecessors—Colin Powell and Condoleeza Rice—did. (I do think people of a certain age—at least the three years older than I am that Secretary Rice is—do not totally get emails.) The first President Clinton should have stayed on his plane in Phoenix and the Attorney General should have told him to leave. And FBI Director James Comey exercised good judgment in reaching his conclusion.
And what about the American people? Well, we’re cursed and blessed. Cursed because the Rs in the House and Senate use this crap to ignore Zika, guns, a Supreme Court nomination, and all of the stuff which really matters. Blessed because the election is only 124 days away … and we do know what happens when we elect a Clinton, right? Job growth, an improved economy, and a steely-eyed a focus on the American people.
Oh, I forgot about the sideshow, where Donald J. Trump can’t figure out how to stop talking about his own shit for long enough to focus on the damn emails. Bellyaching about how the media unfairly reported on his praise for Saddam Hussein, why he shouldn’t have deleted the message with the Jewish star, referencing Article 12 of the Constitution, etc. (There is no Article 12 and, forgive me please, but if you want to be the President of the United States, that is something you ought to know.) What a whiner!