by Bruce Thornton
Now it is up to the voters to decide if we are a nation of laws or men.
FBI Director James Comey has decided not to recommend that Hillary Clinton be indicted for violating security laws concerning the handling of classified information, among other offenses. By doing so he has compromised a fundamental principle of consensual government: that the laws apply equally to everybody, including those entrusted with the people’s power. Now it is up to voters come November to reaffirm that we are a nation of laws, not men.
Comey chose to do what I suggested on May 20 as a possible scenario: “There are any number of ways the Bureau could spin such a recommendation [not to indict] in a way to let Hillary off the hook: no proof of intent, evidence of carelessness but not criminality, or throwing some staffers and aides under the bus.” Comey in his announcement chose two out of three. He scolded Hillary for being “extremely careless,” but said there was no evidence of intent.
Both statements raise suspicions. First, the statute in question proscribes “gross negligence.” How is “extreme carelessness” different from “gross negligence”? Is there a firm legal distinction between these two? Black’s Law Dictionary defines “negligence” in law as “The omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” Here is the definition for “carelessness”: “Negligence: failure to act with the prudence that a reasonable person would exercise under the same circumstances.” See any difference?
A prudent and reasonable person would not pass classified materials over an unsecured email server. A prudent and reasonable person would also consider Comey’s apparent fine distinction between “gross negligence” and “extreme carelessness” to be a sophistry worthy of Bill Clinton’s metaphysical ruminations on the meaning of “is.” As for “intent,” res ipsa loquitur, as the lawyers like Comey say. The very fact that Hillary set up a private server on which to conduct government business, much of it concerning classified materials, is itself a violation no matter the intent. But Comey knows that “intent” is not an issue in determining “gross negligence” according to the statute. A drunk driver doesn’t “intend” to kill anybody, but he’s still going to be charged with a felony for his “gross negligence.” So too Hillary “intended” to shelter her communications from Freedom of Information Act inquiries that might turn up information detrimental to her political ambitions, not to endanger government secrets. That doesn’t affect the criminality of her actions.
Just ask General David Petraeus. In 2012 he didn’t “intend” to “mishandle classified materials” that he shared with his girlfriend. The FBI recommended a felony indictment anyway, which AG Eric Holder reduced to a misdemeanor. A prudent and reasonable person would conclude that the only distinction between Hillary and Petraeus is that the latter didn’t have Hillary Clinton’s political mojo. I’m reminded of Jonathon Swift’s observation that “Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.” We should wonder what has happened at the FBI in the last few years that has made a relatively minor breach of security protocol worthy of punishment, and then suddenly made a much more serious and consequential breach not worthy of indictment.
Nor do we have to believe that one of Hillary’s or Obama’s flunkeys visited Comey and gave him his marching orders. Henry II didn’t have to order the murder of Thomas Becket, just express his annoyance with him, and thugs did the rest. By the same token, it makes no difference if Comey believes his decision is based on his independent judgment. Those responsible for applying the law must be like Caesar’s wife: above suspicion even if innocent. But judging just by what has already been leaked about Hillary’s behavior, Comey is either guilty or incompetent.
Comey’s decision is just the latest in a long-developing trend. In recent years government officials from the president on down have demonstrated the progressives’ penchant for disregarding laws that don’t serve their private or political interests. And our guardians of the law have been singularly inept at honoring their charge to enforce the laws equally. The FBI’s Lois Lerner violated both her professional ethics and the Constitution in order to intimidate the Democrats’ political rivals, twice evoking the 5th Amendment in her testimony before a House committee. Yet the DOJ found nothing worthy of their attention, AG Loretta Lynch perfuming Lerner’s violations with “prosecutorial discretion” ––the same pretext she used to excuse Obama’s executive orders on immigration during her confirmation hearing. Yes, the Republican Senate confirmed her anyway.
Now it’s up to the people to confirm that we are still a nation of laws, not men, despite the failure of our caretakers of the law to do their jobs. The voters must show that they understand that tyranny rests precisely on the violation of this bedrock principle. Let me again quote Aristotle’s definition of tyranny, since so many people seemingly don’t get it: “that arbitrary power of an individual which is responsible to no one, and governs all alike, whether equals or betters, with a view to its own advantage, not to that of its subjects, and therefore against their will. No freeman willingly endures such a government.”
This is the fundamental choice before us in November. We will soon see if the American people don’t mind this erosion of our freedom, and “prefer equality in slavery to inequality with freedom,” as Tocqueville put it.
Bruce Thornton is a Shillman Journalism Fellow at the Freedom Center, a Research Fellow at Stanford's Hoover Institution, and a Professor of Classics and Humanities at the California State University. He is the author of nine books and numerous essays on classical culture and its influence on Western Civilization. His most recent book, Democracy's Dangers and Discontents (Hoover Institution Press), is now available for purchase.
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