| If the DOJ chooses to not prosecute a presidential candidate for mishandling classified documents, it should follow that precedent for other presidential candidates. |
It was in July 2016, when then FBI head James Comey went on national television to announce the results of the Hillary Clinton email investigation. Just to review, Hillary Clinton—as Secretary of State under Obama—illegally set up an email server in her home and used it to send and receive State Department emails and classified documents.
Why was this bad? First, because how government officials handle emails is a very regulated affair. It needs to be, so all records of communication can be preserved and later—if needed—reviewed. The second, and far more serious, reason it’s bad is because a private email server in a home is extremely susceptible to being hacked, and classified information stolen. China and Russia, to name just two, are constantly at work trying to steal government documents—especially from high ranking US officials.
When Hillary’s email scandal broke, and the FBI concluded it was “highly likely” her private server HAD been hacked by one or more parties, the first priority was damage control. And that meant finding out what information was on that server that was now likely sitting in Moscow or Beijing. So the emails were subpoenaed, which meant she was required to hand them over.
Did she hand them over? Uh, no. She used BleachBit™ to permanently erase all the data on her computer, and then destroyed the hard drives with a hammer. (I’m not making this up.)
Wait, was that legal? Uh, no. Willfully destroying evidence under subpoena is a felony. Each of Hillary’s (estimated) 31,000 emails was a document, so she could have been charged with 31,000 felonies.
What would cause Hillary Clinton, a lawyer who knows how serious it is to destroy evidence under subpoena, nonetheless commit felonies to keep from handing this material over to authorities? We can only assume it’s because what would have been revealed by those email was so incriminating, it would have gotten her in far more trouble than merely committing 31,000 felonies.
It turned out to be a good decision because at the end of the day, Obama’s Department of Justice gave her a pass. And that brings us back to Comey’s July, 2016 televised press conference. After the FBI looked into the whole “Hillary Email Scandal” Comey announced to the nation:
- Hillary had definitely broken the law, and people had gone to jail for doing what she had done.
- “No prosecutor in America would pursue this case.”
What he conspicuously did NOT explain was WHY no prosecutor in America would pursue this case.
The more you think about those two statements above, the more shocking they are. This wasn’t a trivial charge of jay walking. This was serious law-breaking on an almost industrial scale: 31,000 emails, many of which (concluded the FBI) contained classified information, and Hillary’s use of a private server to keep them hidden had almost certainly meant one or more of America’s enemies now had them. Bad enough, but then she engaged in willful and felonious misconduct to destroy the evidence?!?!?! And she got caught?!?!?!?
Arguably, this was far worse than the Watergate scandal because in that instance, the underlying crime was trivial: some overzealous GOP campaign workers broke into a DNC office and stole some unimportant documents. What was NOT trivial was Nixon then using the power of the presidency to try to cover up this trivial crime. Yeah, that was a pretty corrupt thing to do, and he had to go. Good riddance.
But Hillary Clinton’s misbehavior (likely) released potentially thousands of classified documents into the hands of our enemies. Then she tried to destroy the evidence of her crime. And likely the far bigger crimes we’ll never know about, because she hid them by destroying that evidence.
So why did Comey give her a pass? Almost certainly because it would have derailed a presidential election, and he didn’t want the FBI causing such interference.
Was that a good reason? Legal scholars can debate that until the end of time. Political science geeks (like me) would note that it really shouldn’t have been Comey’s decision anyway. The FBI is an investigating agency, not a prosecutorial one. His boss at the Department of Justice, Loretta Lynch, should have made the decision. But Loretta had ducked the responsibility by—ahead of time—announcing she would follow Comey’s recommendation when it came to prosecuting Hillary. And she did. So Hillary Clinton received not even a slap on the wrist after committing 31,000 felonies, and willfully destroying evidence so as to cover it up. Wow.
As it turned out, she lost the election anyway, to Trump. But when Trump took office, why didn’t his Justice Department prosecute her? Remember, it was Trump who perfected the chant: “Lock her up! Lock her up!” But when he could have, he chose not to.
Why? Probably for similar reasons. It’s a really, really bad precedent for a victorious presidential candidate to use the levers of power to punish political opponents. That’s what they do in third-world countries, and Trump wisely chose not to go down that road. Good for him.
So a precedent was set. While there might be some crimes that are so serious you can’t turn a blind eye to them, when it comes to crimes committed by presidential candidates, you need to raise the bar pretty high. Otherwise, every U.S. president might start using the power of the office to put political opponents in jail.
The nation takes that principle so seriously, and is quite rightly so terrified at the idea of a sitting president using his power against an opponent, that when Trump had a phone call with the President of Ukraine—asking about what seemed to be smoking gun evidence of Joe Biden corruption in the Burisma prosecutor affair—Congress impeached him over it. Yep. A mere phone call asking for information about what seemed to be a serious crime, was deemed so outrageous (because it was against his political opponent) that he was impeached. Wow.
OK, all that is background. The bottom line is that if you were going to apply the law equally to everyone, Hillary Clinton should have been prosecuted. Because (altogether now, in unison)…NO-ONE-IS-ABOVE-THE-LAW.
But that’s clearly not true. Obama’s Justice Department, through James Comey, made the decision NOT to prosecute a leading presidential candidate in the midst of a campaign. It deemed such action would be more damaging to the country than the underlying crimes that Hillary committed.
If you believe in equal protection under the law, then that decision was a mistake. It was wrong. But the precedent was set. Now jump ahead seven years, and we find Biden’s Justice Department turning heaven and Earth to charge Donald Trump with a crime. They may or may not have found one, with respect to how Trump handled classified documents at Mar A Lago. But when anyone raises their eyebrows at Biden’s DOJ’s prosecuting his leading political opponent, the refrain is always: “No one is above the law.”
Uh, not exactly. When leading presidential candidates may have committed crimes, the precedent is that you do NOT indict them. If that’s the precedent—even if wrong—you sure don’t want to reverse it when someone from the opposite party finds themselves in hot water.
If Hillary gets a pass for far more serious crimes than anything Trump may have committed, because she was in the midst of a presidential campaign, then that same courtesy (right or wrong) should be applied to the other party as well. Otherwise, a far more serious mistake is being made—one that truly does threaten our democracy.
In short, sometimes two wrongs DO make a right.
Jacques Voorhees 