Mises Wire

The Political Class vs. the Rest of Us

bill clinton

In the end, whatever she did really didn’t matter. Had a bank camera captured footage of her robbing a bank at gunpoint, James Comey would have declared that while Hillary Clinton did a bad thing, no federal prosecutor would have indicted her. (This is to assume that the Clintons need to use weapons when extorting money for themselves while, in reality, a simple speech or a political favor couched in political threats will do just fine.)

The Clintons have been through this before. They break the law, they do what they want, they walk, and American Progressives pour out their adulation for them and excoriate others for doubting the Clinton’s innocence. Don’t you know? The Department of Justice just EXONERATED the Clintons!

For all of the analysis that is being done in the wake of Comey’s announcement that no reasonable prosecutor would seek a criminal case against someone who (in Comey’s own words) broke the law with impunity and lied about what she had done, this one point stands out: no one should be surprised at the outcome. Hillary Clinton is an American political elite, and political elites always are handed a free get-out-of-jail card no matter what they may do; all others may not apply.

It’s Not About Wealth, It’s About Politics 

We will hear, no doubt, that the justice standard depends upon one’s wealth. Please. Tell that to Martha Stewart, whom Jim Comey prosecuted when he was the George W. Bush-appointed US attorney and won a conviction against her in a Manhattan federal court in 2004. Unlike Hillary Clinton, who clearly broke statutory law, Comey fashioned “creative” charges of “securities fraud” against Stewart because she publicly declared her innocence and especially her innocence of breaking the “insider trading” statutes. (Comey, of course, never charged her with insider trading, so, instead, he charged her with the crime of telling the truth.)

Like Hillary Clinton, Martha Stewart allegedly lied to FBI officers who interviewed her; unlike Clinton, Stewart built up her wealth via successful entrepreneurial decisions made in the marketplace, not in Washington, D.C. While the Clintons have built up a financial empire solely on their political connections, Stewart did not have the same political cover and found that her wealth could not overcome Comey’s prosecutorial misconduct, a judge who was in the government tank, and a hostile news media that hates entrepreneurship outside the political realm.

If there was a legal standard to which Comey appealed, it was that of mens rea, which for centuries undergirded Anglo-American criminal law. Meaning “a guilty mind,” mens rea standards mean that those charged with crimes had to know (1) they were breaking the law, and (2) they intended to break the law. During his announcement not to prosecute, Comey said that while Clinton and her aides were “reckless” and no doubt put US government “secrets” at risk of being discovered by outside parties (which did happen), nonetheless they had no intention of breaking the law.

The Political Class vs. Everyone Else

If one wants to understand the difference between the government’s legal standards for the political classes versus everyone else, it is the use of mens rea. Even Comey acknowledged (and everyone else understood) that Clinton’s motives for handling emails outside the government’s legal system were to protect her politically and to protect her political viability for when she ran again for president. Furthermore, as Rudy Giuliani pointed out (granted, Giuliani was one of the most abusive, dishonest, and politically-motivated federal prosecutors ever), the statute which Clinton allegedly broke does not even require criminal intent for a prosecutor to pursue criminal charges.

Instead, the criminal standard for her actions fell under the “recklessness” category, which means that the person who engaged in the illegal actions did so, according to Black’s Law Dictionary, with “a state of mind in which a person does not care about the consequences of his or her actions.” In other words, the person knew that possible harm could come to others through one’s actions, but did so anyway without regard to possible consequences.

Comey, however, chose to ignore the part of the legal statute permitting criminal charges on the basis of recklessness and chose the more rigorous category of “intent.” That is, he said that since he believed that Clinton and her associates did not openly “intend” to commit a crime, he could not charge her.

Compare Comey’s treatment of Hillary Clinton with his treatment of Martha Stewart. In charging Stewart with securities fraud, Comey was claiming that Stewart intended to break the specific laws that define such fraud. To put it another way, when Stewart publicly said that she had not engaged in insider trading (because, after all, she had not violated the statute, even one as vague as the one governing such practices), Comey claims that she knew she was defrauding people who held stock in her company. This is utterly laughable and was an abuse of the law. Furthermore, although Stewart’s trial judge dismissed the securities fraud charges, one suspects that the jury would have convicted Stewart of that charge, too.

(The Stewart jury, to put it mildly, came to the trial predisposed to convict her. One of the most outspoken jury members even bragged about lying on his jury form so that he could get onto the jury and vote to convict. In normal situations, that would have been enough for an appeals court to overturn her conviction, but the Stewart case was anything but normal and the courts gave Comey and company carte blanche in prosecuting her, including putting on a prosecution witness who committed perjury during testimony.)

I make this point because James Comey was applying entirely different legal standards to Clinton than he did to Stewart, and I am sure that he had the backing of his boss, US Attorney General Loretta Lynch. In fact, just before Comey made his announcement, Lynch met with Bill Clinton in a meeting in Phoenix that at best can be termed “suspicious,” despite Lynch’s claim that they met just to talk about golf and their grandchildren. Furthermore, Hillary Clinton’s campaign already had floated a proposal to retain Lynch as AG, which certainly would seem to be more suspicious behavior than anything Stewart had done.

Or compare Comey’s treatment of Hillary Clinton with how he dealt with Frank Quattrone, the banker whom Comey charged with “obstruction of justice” and “witness tampering” for a series of emails that Quattrone sent to employees and associates preceding a federal investigation of Quattrone and Credit Suisse First Boston. The government never proved that Quattrone and his associates ever destroyed any documents pertinent to the investigation (which proved fruitless in itself for finding criminal behavior among those being investigated), but Comey got a short-lived conviction with the help of a friendly federal judge that essentially told jurors in final instructions to convict the defendant. (The Second Circuit Court of Appeals reversed the conviction and the feds never retried Quattrone.)

Hillary Clinton, on the other hand, destroyed evidence, lied to investigators, made public statements about her email servers that clearly were untrue, and did everything she could to mislead the FBI. Comey admitted all of these things under oath in testimony to Congress, yet he showed Clinton legal deference that others did not receive.

Not that the US Department of Justice does not prosecute people who run afoul of its so-called “security” laws — even if it is clear that the accused did not intend to commit a crime. Writes Judge Andrew Napolitano:

Thus, in the past two years, the DOJ has prosecuted a young sailor for sending a single selfie to his girlfriend that inadvertently showed a submarine sonar screen in its background. It also prosecuted a Marine lieutenant who sent his military superiors a single email about the presence of al-Qaida operatives dressed as local police in a U.S. encampment in Afghanistan — but who inadvertently used his Gmail account rather than his secure government account.

Yes, federal prosecutors are powerful people who can and will engage in lawbreaking themselves. When Rudy Giuliani was US Attorney in Manhattan, his Wall Street prosecutions had the backing of the political and financial establishment there. When Giuliani illegally (and feloniously) leaked grand jury information to the Wall Street Journal and the New York Times, no one held Giuliani to account. (The NYT did prattle on about “obeying the law” when it came to Wall Street financial people such as Michael Milken, but it ignored the lawbreaking of Giuliani and his associates.)

However, that same media and political establishment would have gone after Lynch and DOJ prosecutors if they ever had charged Hillary Clinton with crimes, and the attacks would have been so brutal and so relentless that no one who was targeted could survive professionally, and even their families would be outcasts.

The Two Americas

As I wrote during the 2004 presidential campaign, there really are “two Americas,” but not the ones that leftists like to claim. Instead, there is the America for political elites and the America for the rest of us. Regarding prosecutorial privileges in the Martha Stewart case, I wrote:

... federal prosecutors suborned perjury. That is a felony, but no one on the prosecutorial staff faces danger of being indicted. When federal authorities questioned Stewart about her stock sale, she was required to be “truthful” (tell the investigators what they wanted to hear), but at no time were the authorities required to tell the truth on their end. In other words, the demand for truth-telling is one-sided in the federal system.

The Stewart sale of ImClone came about because someone on a congressional staff illegally leaked information to the New York Times. That was a felony, but no one who was responsible for the crime need fear indictment. Federal prosecutors leaked sealed grand jury information to the New York Times. This, too, is a felony, but no prosecutors will find themselves in the dock. By the way, the New York Times editorial writers gushed with praise for prosecutors and Stewart’s accusers, making itself little more than the publicity arm for the feds. Rule of law at the Times goes only one way, too.

The fix was in from the beginning, and it should have been obvious that (1) Clinton broke the law, and (2) she would not face legal consequences for it. Likewise, in the event she is the next president of the United States, at some time in her administration, she or one of her subordinates, or perhaps her husband, will openly commit a crime and, after a bit of a public outcry, the accused will skate. Politics is ugly even in good times, and these are not good times, as the political classes gain power and lead the rest of us into poverty, ruin, and even prison.

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