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Posts Tagged ‘Hillary Clinton’

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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I cannot say I’m surprised we’re not doing the French non-Mistake. Still, I find the collapse of Bill Kristol’s first independent-candidate trial balloon a little depressing, for the reasons Mr. Noah Rothman states eloquently in this article.

Which means back to the drawing board for conservative #NeverTrump movers and shakers, and a longer wait for a good candidate for many of the rest of us conservative voters, who are hoping for a reasonable alternative to swallowing either of the presumptive major-party nominees as a “lesser” evil.

Meanwhile, some discontented conservative Christians (by which I mean people, mostly Catholics and Evangelicals, who would regard the Apostles’ Creed as true and the Bible as inspired even where its ethics plainly conflict with the ethics of the contemporary secular world, including but not limited to the ethics of the Sexual Revolution), convinced that stopping the Donald must be regarded as priority no. 1 in the 2016 election, have started floating the possibility of voting Clinton, and even asking Evangelical leaders to spend their credibility in telling their congregations that it’s okay to vote Hillary.

To these I would urge patience and caution, and a more realistic appraisal of the evils a Clinton administration would represent. There are the general evils of a Clinton administration — like the fact that its head would be corrupt — but for small-o orthodox Christian voters, Clinton’s presidency would present the following, more specific, evils:

(1) If Ms. Clinton gets to pick one or more Supreme Court justices (and appoint many lower federal judges) it’s pretty certain that Elane Photography v. Willock will be written into federal Equal Protection jurisprudence, and cases like Burwell v. Hobby Lobby Stores and Rosenberger v. Univ. of Virginia overruled, at soonest opportunity. Moreover, as hinted by Solicitor General Donald B. Verrilli in his oral argument in Obergefell v. Hodges (see pp. 36-39), under a Clinton administration and with Clinton appointees as federal judges, it’s quite possible that many evangelical and Catholic institutions which hold to Scriptural and historic Christian norms on sex (the kind we are and the kind we do) will be Bob Jones-ed. And given the tenure of federal judges, the judiciary could continue delivering such results for decades after the end of a Clinton term of office. In other words: goodbye to any meaningful Free Exercise, RFRA, Free Speech, and Free Association protections for the “hater” class; hello to the de facto Establishment of liberal theology and religious tests for office (read: no Evangelicals, conservative Catholics, or Orthodox Christians need apply — unless they’re prepared to remain closeted and perform all official acts like good secular liberals).

(2) A President Clinton would almost certainly enjoy the protection and support of the Democratic Party, its Governors, and its Representatives and Senators. She’d also be propped up by much of the mainstream media. A President Trump, by contrast, would not only face vigorous opposition from the opposition party and media, but also considerable suspicion within his own party. (I regard most of the Trump endorsements now coming from the GOP as pro forma fulfilments of Party loyalty pledges.) And as unsettling as it is that Trump has smashed so many (to borrow David Frum’s excellent term) protective guardrails of American democracy, it wouldn’t surprise me if many even among Trump’s now-devoted supporters end up withdrawing their support after his election. It’s easy to arouse popular anger and energy by cheap (and often inconsistent) signaling on the campaign trail. But when someone has to govern, the all-things-to-all-men signaling has to stop and tough choices have to be made. In that reality, I think a good many grassroots Trump supporters would quickly become disillusioned and fall away — bad seed as well as good withers quickly in the rocky ground.

(3) When the popular support dries up and the opposition and suspicion do not, Trump would no longer have the means to pound further upon the guardrails of American politics — except perhaps via his use of the presidential bully pulpit. And here I’ll make a concession: a President Trump’s use of the bully pulpit would almost certainly prove damaging. Perhaps more damaging than a President Clinton’s. Certainly it would prove damaging in less predictable ways. We can be pretty sure that Clinton’s national preaching, like her policies, would embolden abortion-rights absolutists and illiberal Social Justice Warriors, neither of which needs further emboldening right now. Trump’s pulpit rhetoric would . . . well, who knows? Inflame racial hatred? Teach boys to objectify women? Provoke foreign powers? Alienate allies? Forge unholy alliances with authoritarian leaders like Vladimir Putin? No one can say with much certainty, but the candidate’s own lips regularly make the darkest speculations entirely plausible.

This likely abuse of the bully pulpit, however, I regard only as a good reason not to vote for Trump. It still isn’t a good reason for conservative Christians to throw their support to Clinton. So don’t be impatient. We may not have a French Revolution, but other help could be on the way — if not to win, at least to lead a serious and noble opposition we can support in good conscience.

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