Government & Politics

Keeping Clinton on the Ropes

The next question: Did Clinton commit perjury in Congress?

Michael Swartz · Jul. 8, 2016

Most Americans who’ve followed the investigation into Hillary Clinton and her private email server fall into one of two camps. The first — those who believe the system is rigged and that she engaged in criminal acts but got away with them simply because her last name is Clinton. And the second — those who feel Hillary was the victim of yet another partisan witch-hunt that ended up being much ado about nothing, and that she’s being harassed simply because she’s a woman intent on breaking the highest “glass ceiling” of all.

Undoubtedly congressional Republicans fall into the former group, so it was no surprise once the news broke that no criminal charges would be brought against Clinton that their first act would be to haul FBI Director James Comey in front of the House Oversight and Government Reform Committee to ask him for an explanation. Comey essentially argued that the applicable law — a 1917 statute based on “gross negligence” in mishandling classified information — wasn’t actually applicable.

“No reasonable prosecutor would bring the second case in 100 years focused on gross negligence,” testified Comey, a former U.S. attorney. “That’s just the way it is. I know the Department of Justice, [so] I know no reasonable prosecutor would bring this case.” The case against Clinton, Comey added, did not meet the “mens rea” legal standard of criminal intent.

Yet one has to ask: What, then, was Hillary’s intent? Perhaps it wasn’t necessarily criminal intent, but there certainly was a lot of shady dealing going on between the Clinton Foundation, foreign leaders and others in the private loop with Hillary at the center. Even aside from the likelihood of hackers accessing the classified information on her private server, the reality that the Clintons used the secretary of state’s office to peddle influence and thereby enrich themselves is outrageous. The personal email setup likely helped her cover-up Benghazi, too.

Instead, the whole affair is chalked up to “carelessness.” As Comey pointed out: “I see evidence of great carelessness, but I do not see evidence that is sufficient to establish that Secretary Clinton or those with whom she was corresponding both talked about classified information on email and knew when they were doing it that it was against the law.” While Comey claims no “reasonable” prosecutor would bring charges, it’s also true that one can indict a ham sandwich. Indeed, frivolous and politically motivated charges have often come from an overzealous prosecutor and a stacked grand jury bent on political mischief. (Former federal prosecutor Andrew McCarthy picks apart this defense from Comey by comparing it to a similar type of case where criminal negligence is often determined.)

Or, taken the other way, how many who are accused of similar acts will now be using the “Hillary defense” to imply that they were only careless and had no criminal intent? One certainly could have lumped David Petraeus into that group had he been investigated post-Hillary.

It’s more difficult to sit there with a straight face and assure Americans that the system isn’t rigged, as Comey did, when two high-profile cases turn out so differently — to the benefit of the political party in power, no less. And when the top law-enforcement official in the country agrees to a secret meeting with the suspect’s former-president husband, Comey’s insistence that he “did not coordinate … with anyone” rings hollow.

No one in “the White House, the Department of Justice, or anyone outside the FBI family had any idea what I was about to say,” added Comey. “I say that under oath, I stand by that. There was no coordination.” We call bovine excrement on that: After all, why would Barack Obama be campaigning with Hillary on the very day she was cleared if he didn’t know the fix was in? (Does anyone think a sitting president would share a stage with a politician who’d just been indicted?)

Comey didn’t need to have a phone conversation with Attorney General Loretta Lynch or Obama or anyone else to know that Clinton was to be let off the hook. For one thing, Obama’s been tipping the scales of justice since last spring, claiming during a “60 Minutes” interview that Clinton’s malfeasance didn’t pose “a national security problem.” The FBI director is appointed by the president, and serves at the pleasure of the president. Comey knew the score.

There may be a second chance to give Hillary her due, though. In his opening remarks for the House hearing, Rep. Jason Chaffetz (R-UT), who chairs the Oversight Committee, asked Comey if the FBI investigation probed into Clinton’s congressional testimony and whether she lied under oath. When it was learned Comey had not and was waiting on a referral from Congress to do so, Chaffetz assured Comey he will get one. While the case could be a slam dunk on the factual side, the problem may be in proving intent there as well. Republicans don’t have a great record against Clinton perjury.

It will also be perceived, thanks to the mainstream media, as another partisan effort to smear Hillary, who may get away with this one too because we’re certain her already-shaky memory will repeatedly fail her in this case. “I don’t recall” may be the catchphrase of this campaign, perhaps even supplanting “what difference, at this point, does it make?”

One telling exchange in that regard happened when Rep. Trey Gowdy (R-SC), a former prosecutor and the leader of the Select Committee on Benghazi, confronted Comey with numerous false statements made by Clinton before Congress. Gowdy then asked Comey, “In interest of time … I’m not going to go through any more of the false statements. But I am going to ask you put on your old hat [as a prosecutor]. False exculpatory statements, they are used for what?”

“Either for the substantive prosecution or for evidence of intent in a criminal prosecution,” Comey answered.

“Exactly,” Gowdy said. “Consciousness of guilt and intent.” Case closed?

Our nation has stomached the Clintons for about a quarter-century now. “Clinton fatigue” may have set in long ago, but the reason they stay in the news is that they just can’t seem to live outside the spotlight or within the law. It’s a sad state of affairs that she could be our next president in part because of a rigged investigation that purportedly hinged on what a “reasonable” prosecutor would do.

Message to Director Comey: We have long since departed from reason in this country. Your job was to restore the sanity of Rule of Law.

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