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Archive for July, 2016

Some time ago a good friend of mine wrote a note, in the midst of a set of truly appalling circumstances, about the importance of non-judgment. For, she said, we don’t really know what anyone is up against. We do not know the history of the one whose action we judge. And, if we were given the history and circumstances of those we judge, would we have done better? 

Nothing in the note, especially given the circumstances it addressed, was wrong. Quite the contrary, in its place it was exactly right. And yet, after reading it through twice, I had a nagging thought that it was incomplete. Yet that’s about all that anyone is willing to say publicly about judgment these days: “Judge not, that ye be not judged.” There is more that needs to be said, though, and hardly anyone is saying it.

Hi Ed Nathan Jr.

Thus saith the kidnappers of Nathan Arizona, Jr.: “Now y’all without sin can cast the first stone.”

 

The thing more that needs saying has to do with the distinction between appraising and condemning. The connotations attached to these two words are quite different, though both can be used as synonyms for judging. Appraising and condemning may sometimes be distinguished in their effects, but more often in their respective intentions and underlying assumptions. The condemning man, when pointing a finger at a wrongdoer, doesn’t stop to think whether he’d have done any better — but probably assumes he would have. The appraising man also does not stop to think whether he’d have done better, but for a very different reason: what he would have done isn’t the standard.

There’s a reason the demanding teacher — the relentlessly critical appraiser of thoughts and words — is an archetypal character. And it’s no accident that under that archetype’s crusty exterior is a heart of gold. The exacting teacher is the one who cares. It is precisely because he does care that he will push his students to and just beyond the point they think of as “the limit” — but not so far beyond them that the students will break. The teacher knows the standard for all is wisdom, virtue, and high beauty, and that only great exertion will get us there.

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From listening to a bit of FBI Director James Comey’s testimony before the House Oversight Committee, it isn’t really hard to grasp what was behind the Federal B.I.’s no-prosecution recommendation in the case of Hillary Clinton. Here is the Bureau’s thinking in a nutshell: even though the Espionage Act sets forth gross negligence as the required mental state for a violation, the feds can’t prosecute everyone, so they have reserved prosecutions for specific-intent cases. If the Director’s summary of the FBI’s historic practice is correct, then the no-prosecution recommendation in Clinton’s case is consistent with that. Fair play.

What I don’t get are Comey’s repeated, totally gratuitous, and absurd general statements about the criminal law: that crimes generally require specific intent rather than negligence; even that criminal statutes requiring only negligence may be constitutionally infirm on that ground. If that were so, a lot of people currently serving time for involuntary manslaughter would be amazed.

Nor do I get the Director’s waffling on the question of whether Clinton violated the law. The answer to that question, assuming that Comey’s characterization of Clinton’s information-handling as “extremely careless” is accurate, would clearly be “yes.”

If I were making Comey’s case, I would ask and answer four simple questions:

Q1: Did Clinton violate the law?

A: Yes. The law requires gross negligence in handling information; she was grossly negligent.

Q2: Can federal prosecutors prosecute every violation of the law?

A: No.

Q3: In light of that, how have federal prosecutors decided whom to prosecute?

A: By looking at whether the evidence further shows intent to violate the law, intent to cover up a violation, or intent to give confidential information to enemies.

Q4: Did Clinton violate the law in a manner that shows such intent?

A: No.

Therefore, Clinton violated the law, but the FBI’s no-prosecution recommendation is consistent with the FBI’s and the Justice Department’s treatment of other persons who violated the law’s gross negligence standard. The kinds of violations Clinton committed have customarily been handled, not by criminal prosecution, but administratively within agencies.

Was that so hard?

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