THE SOUND AND FURY OF "CLINTON SKATES"

To my chagrin, it appears the many who months ago said that the fix was in and Hillary Clinton would never be indicted were correct.   

The day after Independence Day, FBI Director James Comey gave a long address concerning his agency’s findings on Clinton’s handling of classified materials in which she sent and received Secret and Top Secret information from her unclassified, unsecured e-mail account.   For several minutes, it seemed that the Director was building a case for a criminal prosecution to the Justice Department.   But at the end of his comments, Comey stated that the FBI could not find indication of “intent to harm the United States”.   Thus, Director Comey recommended against prosecution of the law violations.

While the substantial unlikelihood that the Justice Department would pursue prosecution was good news for Hillary Clinton, it was not all good.   Contrary to the assertions coming from the Hillary camp, Clinton was far from being exonerated.  In brief, Comey meticulously outlined Hillary Clinton’s wrongdoing and falsehoods:

• ·        With lawful access to highly classified information she acted with gross negligence in removing and causing it to be removed it from its proper place of custody, and she transmitted it and caused it to be transmitted to others not authorized to have it, in patent violation of her trust.

• ·        Former Secretary Clinton was “extremely careless” and strongly suggested that her recklessness very likely led to communications (her own and those she corresponded with) being intercepted by foreign intelligence services.
• ·        Of the 30,000 e-mails Clinton turned over to the State Department in 2014, 110 e-mails in 52 e-mail chains contained information that was classified at the time the message was sent or received. Eight of those chains contained information that was “Top Secret,” and seven contained “Special Access” intelligence (the most sensitive classification available). These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters.   Any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation.

• ·        That many of the e-mails may or may not have been “marked” classified when they were received by Secretary Clinton is immaterial:   “Separately, it is important to say something about the marking of classified information. Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information. But even if information is not marked ‘classified’ in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.”

• ·        Messages containing classified information were also found among thousands of e-mails not provided by Clinton’s lawyers — who, Comey reports, deleted e-mails that were not in fact “personal” and “cleaned their devices in such a way as to preclude complete forensic recovery.”

• ·   
       Clinton set up not just one but “several” personal servers during her time at State.   She used several administrators for those servers and used not two (as Clinton claimed) but several personal devices in her communications.  None of these servers or devices were supported by full-time security staff.

Andrew C. McCarthy, currently a columnist for the National Review and Commentary, served as an Assistant United States Attorney for the Southern District of New York.  He is most notable for leading the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others. The defendants were convicted of the 1993 World Trade Center bombing and planning a series of attacks against New York City landmarks.  He also contributed to the prosecutions of terrorists who bombed US embassies in Kenya and Tanzania.   He is no longer in government service; nevertheless, McCarthy makes a number of arresting remarks on Comey’s conclusions as a matter of law.

He writes:

There is no way of getting around this: According to Director James Comey (disclosure: a former colleague and longtime friend of mine), Hillary Clinton checked every box required for a felony violation of Section 793(f) of the federal penal code (Title 18): With lawful access to highly classified information she acted with gross negligence in removing and causing it to be removed it from its proper place of custody, and she transmitted it and caused it to be transmitted to others not authorized to have it, in patent violation of her trust.

McCarthy continues:

Yet, Director Comey recommended against prosecution of the law violations he clearly found on the ground that there was no intent to harm the United States.

Top of Form

Bottom of Form

In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require. The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing. The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence.

I would point out, moreover, that there are other statutes that criminalize unlawfully removing and transmitting highly classified information with intent to harm the United States. Being not guilty (and, indeed, not even accused) of Offense B does not absolve a person of guilt on Offense A, which she has committed.

It is a common tactic of defense lawyers in criminal trials to set up a straw-man for the jury: a crime the defendant has not committed. The idea is that by knocking down a crime the prosecution does not allege and cannot prove, the defense may confuse the jury into believing the defendant is not guilty of the crime charged. Judges generally do not allow such sleight-of-hand because innocence on an uncharged crime is irrelevant to the consideration of the crimes that actually have been charged.

It seems to me that this is what the FBI has done today. It has told the public that because Mrs. Clinton did not have intent to harm the United States we should not prosecute her on a felony that does not require proof of intent to harm the United States. Meanwhile, although there may have been profound harm to national security caused by her grossly negligent mishandling of classified information, we’ve decided she shouldn’t be prosecuted for grossly negligent mishandling of classified information.

I think highly of Jim Comey personally and professionally, but this makes no sense to me.

Finally, I was especially unpersuaded by Director Comey’s claim that no reasonable prosecutor would bring a case based on the evidence uncovered by the FBI. To my mind, a reasonable prosecutor would ask: Why did Congress criminalize the mishandling of classified information through gross negligence? The answer, obviously, is to prevent harm to national security. So then the reasonable prosecutor asks: Was the statute clearly violated, and if yes, is it likely that Mrs. Clinton’s conduct caused harm to national security? If those two questions are answered in the affirmative, I believe many, if not most, reasonable prosecutors would feel obliged to bring the case.

I am not an attorney so I no way of evaluating McCartney’s points.   Indeed, Clinton has plenty of advocates (legal and otherwise) defending Comey’s resolution against prosecution.    Still, one has the sick feeling that Clinton “got away” with it.   Comey’s additional comment that only contributes to that unease:

 “To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions.”

Is the cynic, who says this is a case of one law for the little people and another for the powerful, right?  A substantial portion of the American public will think he is.   Several legal authorities contend that many in government have been fined, demoted, imprisoned or fired for less under the same law which befouled Clinton.

A majority of Americans already think Hillary Clinton is untrustworthy and corrupt—that she is a part of an elite who uses the system to her own personal advantage and enrichment.   In other words, they believe she is a liar and a crook.  One may think they are wrong about that; but the perception is there and Comey’s findings will only augment those views.   To many, just on its face, there is only one reason she would have set up a personal server in the basement of her home and that was to evade governmental scrutiny and the legal demands for documents by civic organizations under the Freedom of Information Act.  

Unlike many in the media, I don’t think Comey’s decision not recommend prosecution puts Clinton’s e-mail calamity behind her.     The body of Comey’s remarks provides the rich stuff of opposition political ads.  On the other hand, the Republican Party’s penchant for failing to take up on an opportunity to advance its cause may come through for Hillary Clinton once again.

But the past is prologue.   Controversy, scandals, charges of conflicts of interest, accusations of criminal activity, and apparent lying have followed both Bill and Hillary from the very beginning of their entrance into public life.   Expect no change in that in another Clinton presidency.   There are more than a few rumors that the FBI is investigating possible connections between foreign donations to the Clinton Foundation and actions Hillary undertook in her capacity as Secretary of State.

Nothing may come of that either.   But, as one attorney told me with a wick of his eye, a finding of “not guilty” only means there wasn’t enough evidence or drive to convict.   “Not guilty” doesn’t mean the same thing as “innocent”. 

THE NEW YORK TIMES CITES THE BIBLE

It is a commonplace observation that Biblical literacy among the American populace is…well…somewhat woeful these days.  There was a time when one could count on a thorough knowledge of the Christian scriptures and allusions to the Bible in the literature of the time and public addresses made by politicians and others.  Biblical literacy was so widespread that even atheists knew there Bible.

Perhaps the most well-known example of such discourse is Lincoln’s address at his second inaugural.   Lincoln used his Second Inaugural Address to touch on the question of Divine providence. Lincoln wondered what God's will might have been in allowing the war to come, and why it had resulted in the appalling magnitudes it had taken. He attempted to speak to some of these quandaries, using allusions taken from the Bible.

Although it is the second shortest inaugural address in American history, Lincoln’s speech is probably the most striking in language and substance. Despite its succinctness, it addresses the nation’s relationship to God at pronounced seriousness.  Within 701 words Lincoln referenced God fourteen times, quotes the Bible four times and invokes prayer three times.”  Later, Supreme Court Chief Justice Chase gave the Bible to Mrs. Lincoln, marking the pages from Isaiah 5:27-28 which the President kissed.   In part:

“One eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the Southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was, somehow, the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union, even by war, while the government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war, the magnitude, or the duration, which it has already attained. Neither anticipated that the cause of the conflict might cease with, or even before, the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible, and pray to the same God; and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God’s assistance in wringing their bread from the seat of other men’s faces; but let us judge not that we be not judged. The prayers of both could not be answered; that of neither has been answered fully. The Almighty has His own purposes.

‘Woe unto the world because of offences! For it must needs be that offences come; but woe to that man by whom the offence cometh!’ If we shall suppose that American Slavery is one of those offences which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South, this terrible war, as the woe due to those by whom the offence came, shall we discern therein any departure from those divine attributes which the believers in a Living God always ascribe to Him? Fondly do we hope–fervently do we pray–that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said “the judgments of the Lord, are true and righteous altogether.”

“With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation’s wounds; to care for him who shall have borne the battle, and for his widow, and his orphan – to do all which may achieve and cherish a just, and a lasting peace, among ourselves, and with all nations.”

Whatever you believe about Lincoln (a skeptic to the very end or an incipient believer) or his theology (some are positively allergic to any suggestion of a loving God having and dispensing His wrath), one has to note the sophistication in his reflections.    This was a very public meditation made during an auspicious national event.  What is more, the public understood his message and recognized its Biblical roots.

Fast forward to today.  

In the June 15^th issue of the New York Times, reporters Jeremy W. Peters and Lizette Alvarez write an assessment of the then current split among legislators over the civil rights of the LBGT population of the United States entitled “After Orlando, a Political Divide on Gay Rights Still Stands”.     They pen in part:

For a fleeting moment this week, it seemed as if the massacre in Orlando, Fla., was having the unlikely and unintended impact of helping to bridge the chasm between Republicans and many in the gay community.

Mitt Romney offered “a special prayer for the L.G.B.T. community” after he learned of the attack. Senator Marco Rubio of Florida granted an interview to The Advocate, the gay news magazine, and expressed outrage at the Islamic State’s persecution of gays. And Donald J. Trump repeatedly expressed solidarity with gay, lesbian, bisexual and transgender people, declaring, “I will fight for you” — an unprecedented show of support from a presumptive Republican presidential nominee.

But the deep divide over gay rights remains one of the most contentious in American politics. And the murder of 49 people in an Orlando gay club has, in many cases, only exacerbated the anger from Democrats and supporters of gay causes, who are insisting that no amount of warm words or reassuring Twitter posts change the fact that Republicans continue to pursue policies that would limit legal protections for gays and lesbians.

In the weeks leading up to the killings, they pointed out, issues involving gays were boiling over in Congress and in Republican-controlled states around the country. More than 150 pieces of legislation were pending in state legislatures that would restrict rights or legal protections for sexual minorities. A Republican congressman read his colleagues a Bible verse from Romans that calls for the execution of gays.  (Emphasis mine) Congress was considering a bill that would allow individuals and businesses to refuse service to gay and lesbian couples.

We won’t get into the main thrust of the article.  I certainly don’t want to get into the vagaries of Republican politics.  Instead, I want to focus on the reference to St. Paul’s letter to the Romans.

The article does not provide any context relating how the congressman used Romans in his banter.  One supposes that such use of an archaic ancient text justifying the constraint of LBGT legal protections is damning in and of itself.   The problem is that, after two thousand years of reading and commentary on Romans, it is startling to be told there is a new textual discovery which discloses that Paul commands capital punishment for homosexuals.  

A fair guess is that Peters and Alvarez had Romans 1: 26-27 in mind:

For this reason God gave them up to dishonorable passions.  For their women exchanged natural relations for those contrary to nature; and the men likewise gave up natural relations with women and were consumed with passion for one another, men committing shameless acts with men and receiving in themselves the due penalty for their error. (ESV)

Even if one accepts the assumption in your reading that “dishonorable passions” refers to all gay sex, these two verses fall way short of calling for killing gays.   Far more likely “due penalty” would refer to God’s judgement.

To get to the assertion that Romans calls for the execution of gays, one would have to abridge verses 26 through 32 to something like “their women exchanged natural relations for those contrary to nature; and the men likewise gave up natural relations with women and were consumed with passion for one another….those who practice such things deserve to die”.   But such a condensation totally obliterates the point Paul makes and anyone actually familiar with Romans knows this. 

To get Paul’s argument, one has to read verses 28-32 in their entirety: 

And since they did not see fit to acknowledge God, God gave them up to a debased mind to do what ought not to be done.   They were filled with all manner of unrighteousness, evil, covetousness, malice.  They are full of envy, murder, strife, deceit, maliciousness.  They are gossips, slanderers, haters of God, insolent, haughty, boastful, inventors of evil, disobedient to parents, foolish, faithless, heartless, ruthless.   Though they know God’s righteous decree that those who practice such things deserve to die, they not only do them but give approval to those who practice them. (ESV)

Without getting into too much detail, what we have here is Paul’s notorious trap.   Verses 26-27 plays to the Roman smug belief that the Greek empire fell because the populace practiced “unnatural relations”.    In other words, Greece fell because it deserved to.   The Romans did not do such things and it is only fitting that God also didn’t approve.  Thus, Greece’s collapse came about through God’s judgement.  And the Romans took pride in the “fact” God took their far more superior side.

But then Paul list other evils debased minds practiced.   These evils are common in all nations and their peoples.   Not just in a people at large; but in each and every individual.  We all fall under God’s judgement.  WE ALL DESERVE TO DIE.

Paul’s actual message is lightyears away from what Peters and Alvarez believe it to be. 

Perhaps it is not realistic to expect contemporary journalists to be conversant in the Christian Scriptures much less the historic theology of the Church.  Nevertheless, it is incumbent on all journalists to investigate and strive to get it right—even if it is only a minor detail in a much longer piece.  As it stands, Peters and Alvarez support, if only unintentionally, the prejudice that “orthodox” Christians take their backward positions from the worst, most odious parts of their religion.