One aspect of the 2016 Presidential election that is of grave concern to me as a retired lawyer is the differential in the treatment of the conduct of Hilary Clinton as a prominent governmental figure and candidate of a major political party for president and how she would have been treated as an ordinary citizen.
The legal threats for Hilary have been widely publicized. Her acts which are of dubious legality include the usage during her tenure as Secretary of State of an unsecured personal email server which was utilized to send and receive security classified messages, her inaccurate public description of these matters and more significantly, the inaccurate testimony she gave under oath to Congress about them.
Of concern also is her role in the accommodations given by of our government associated with donations to the Clinton Foundation.
For all of these matters there is probable cause of criminal violation which absent her celebrity status would warrant being submitted to judicial process.
But Hilary is not an ordinary citizen. She has been the de facto leader of the Democrat party and despite a spirited challenge by Vermont Senator Bernie Sanders, she has become the nominee of that party for President.
As her troubles surfaced protective mechanisms appeared. The Federal Bureau of Investigation under its director James Comey conducted a review of the Hilary email usage as it related to classified matters. After about six months of study by up to 150 FBI agents Mr. Comey announced that it would not recommend to the Justice Department any indictment of Hilary under the federal codes considered because there was no finding of criminal intent.
The Comey definition of that intent as being one to harm America has been criticized as inappropriate as it is unspecific to the issues presented. In the course of his presentation of the FBI findings, Mr. Comey referred to the Clinton email usage as “extremely careless,” which is virtually synonymous with “grossly negligent” but he ignored the federal codes that stated a violation occurred when there was gross negligence and did not require intent.
The Justice Department then advised that it would not consider whether an indictment might be found concerning “pay to play” allegations regarding donations made to the Clinton Foundation by foreign entities seeking State Department intervention on their behalf.
The Justice Department has not yet been asked to consider indictment of Hilary for perjury based on her inaccurate statements to Congress, but it is considered highly unlikely that it would act. And then since all this protection has been going on under the guidance and perhaps control of the president, if any conviction of Hilary seemed imminent a presidential reprieve or pardon would be probable.
For those who believe as I do in in the principle that no person is above the law, this triumph of politics over law is highly disturbing. The concern I have is not partisan. It would be exactly the same if the transgressions I described had been done by a member of the other party.
I strongly supported the removal of Richard Nixon as president because of his conduct in the Watergate matter including his obstruction of justice in destroying his tapes.
In my view, it should be a point of principle that political power should never be used as as a shield to prevent any person from incurring the rightful consequences for actions which could jeopardize our national security, for statements made by persons seeking public office about their conduct that are untruthful and for permitting donations to a family foundation by parties seeking to obtain governmental action on their behalf.
At this point, it appears that victory will go to those who wish to short — circuit legal process. But the legacy of that result is a crucial weakening of the rule of law, an integral part of the American governmental system.
Walter Lewis is a retired attorney who lives on Kauai and writes a regular column for The Garden Island.