Pardon Her

That post title is not a misprint.

Nor is it an indication that I’ve finally gone off my meds (consisting of beer; on those few occasions when I see someone in a doctor’s office and I’m asked if I’m taking any medications, my invariable response is, “Does beer count?”).

Nor have I suddenly become unable to read, and thus discovered an element of intent in a statute which plainly contains no such element.  18 U.S.C. § 793(f) reads, in full —

(f)Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer–

Shall be fined under this title or imprisoned not more than ten years, or both.”

The FBI director allowed that he was recommending She not be prosecuted for violating that statute because they couldn’t find any solid indication of intent on Her part to commit the acts described in it.  No Virginia, the word intent does not appear in that statute, nor does any variant of it.  Nor, for that matter, does reckless.  But the mens rea for both components of it is in fact expressed, so that you cannot even say that you must infer the standard of intent. The affirmative act proscribed requires only “gross negligence” (which was, as I recall, more or less exactly how Comey characterized Her actions), and the omission (failure to report) requires only “knowledge”.  She certainly had knowledge of the events itemized in the statute.

She is, in round numbers, Guilty as Hell, as are many of Her underlings and associates.  She is subject to imprisonment for up to ten years.  Full stop.

I have expatiated, both here and elsewhere, on why Her actions in respect of this country’s most sensitive information (barring, perhaps, the actual nuclear launch codes) made it impossible for me to support Her candidacy, no matter how revolting Her opponent may be, and no matter what Her actual policy actions might have turned out to be (in contrast to Her objectives as stated for public consumption).  Her blithely compromising our national security would alone have done that.  That, added to Her sale of the fourth-highest public office in our gift (the secretary of state is fourth in line for the presidency, behind only the actual president, the vice president, and the Speaker of the House), and you could have run a yellow dog against Her and I’d have voted for the dog.

Before proceeding, I want Gentle Reader to understand how it pains me to have to write that last sentence.  I grew up among Yellow Dog Democrats, people who proudly proclaimed they’d vote for a yellow dog if you ran him as a Democrat.  And they meant it, too.  I once attended a talk given by the author of a book about a very tumultuous time in my Southern state’s history.  It was neither more nor less than a full-blown constitutional crisis, and several key players came together to salvage the integrity (to the extent we enjoy any around here) of the Rule of Law.  Come to think of it now, those several weeks early that winter marked the point at which the Democrat Party in this state went into a decline from which it has not recovered to this day, forty-odd years later.  What I remember most about the author’s presentation was the praise heaped on the then-chief justice of our state supreme court, because he chose to uphold his oath of office, rather than do what he dearly wanted to do, namely not do anything that might benefit a Republican.  Apparently he actually did struggle with his decision, on exactly that basis.  Pause and think about that for a moment:  The highest judge in the state finds it even a close question as to whether to put party loyalty before his “so help me God” oath to preserve, protect, and defend the constitution of our state and of the United States.  I want to go find his grave, that I may shit on his headstone and otherwise desecrate it and those of his ancestors.

All of the above notwithstanding, I would like nothing more than to see Dear Leader pardon Her on his way out the door.  Certainly pardon Her for Her compromise of national security and all the crimes She committed in connection with the cover-up (destruction of evidence, obstruction of justice, conspiracy, and God only knows what else), and — here I confess I waffle a bit — probably for the corruption-related crimes as well.

However much She richly deserves to spend the bulk of the balance of Her life in an orange jumpsuit (She’s on the wrong side of 70 and not in good health; there’s a decent chance She wouldn’t do the full term even if sentenced), if She is prosecuted by the Trump administration, it will later be explicitly used by a Democrat administration as a precedent to bring witch-hunt criminal charges against defeated opponents.  Capture office and you not only sideline your opponent politically, but you use the physical coercive power of the United States government to destroy the individuals on the other side.  I still remember — I think it was the very first day of class — my 1L criminal law class, and the professor pointing out that criminal law is concerned with the application of the physical coercive power of millions upon millions of people and all the wealth they command to the body, the corporeal being, of a single human.  Or as Stalin phrased it, “How much do you suppose the Soviet Union weighs?”

Stalin, Hitler, Mao, and the other totalitarians are of course only the best-known practitioners of that principle.  A goodly bit of The GuLAG Archipelago covers Stalin’s use of the Soviet criminal law system (I refuse to use the expression “justice” in connection with anything appertaining to the Soviet Union) to wreak the physical destruction of vanquished political foes.  And by “physical destruction” I don’t mean that they had to eek out a marginal existence as third assistant bottle-washer in some dreary provincial town.  I mean they were sent to the execution chambers, just as they had, by the way, joyfully sent thousands of others before them.  So my sympathy for them is muted.

What is less known, because the perpetrator is something of a secular saint around here, is that Stalin and Hitler were far from the only ones doing that.  I refer Gentle Reader to the story of one Andrew Mellon (yes, of that family).  He had been Coolidge’s and Hoover’s Secretary of the Treasury.  After Hoover’s blow-out defeat by FDR, the new president instructed the chief prosecutor for the IRS, one Robert H. Jackson, to bring criminal charges against Mellon.  Not, you understand, for any misdeed taken in any official capacity, but rather for allegedly fiddling on his personal income taxes.  The specific offense charged (because Jackson did FDR’s bidding; his reward later was appointment to the U.S. Supreme Court) was Mellon’s having claimed deductions against his income.  The problem was that the deductions were specifically legal to claim, and Mellon was well within his rights to claim them.  No matter; Roosevelt commanded that he be charged and prosecuted as a criminal, and Jackson the toady in fact tried to do it, although the grand jury returned a no true bill.  The whole sordid story is well-told in Amity Schlaes’s The Forgotten Man.  Not having been able to get the grand jury to do his master’s bidding, Jackson then went after Mellon for civil penalties; eventually Mellon was fully exonerated.  Jackson went on to become the chief Allied prosecutor at Nuremberg’s IMT trials of the chief Nazi defendants.

So Gentle Reader may not think it can’t happen here, because it can and it has.  In fact it continues.  What’s left of the Democrats in Texas have made several — thus far unsuccessful — runs at their opponents.  In Alaska they succeeded in a witch hunt trial of Sen. Ted Stevens.  They convicted him of corruption and he lost his re-election bid to a Democrat, with the vote of whom the “Affordable” Care Act became law.  There was only one problem:  The Department of Justice rigged the whole thing, up to and including manufacturing of evidence and suborning perjury.  Don’t take my word for it.  Let’s hear from the Special Counsel’s report (completed and released too late to avoid the disastrous consequences of his loss to the Senate):  “The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.”

The fact that She is in fact guilty, that there is no reasonable dispute as to Her guilt, the fact that the damage She did to national security interests, all in an effort to cover up . . . well, we don’t know quite why she went to such lengths . . . will endure for decades:  None of that changes my thinking.  Trump’s prosecution of a consummately guilty person will, no matter the outcome, later be used by his Democrat successors as an excuse to destroy the innocent.  And then it will be only a question of time before a successful Republican does it.  And then it will become part of our political DNA.  Lose office and they’ll hound you into jail or the grave, whichever comes first.

When you raise the stakes of political challenge-and-defense to that level, candidates and incumbents alike will stop at nothing in their effort to win.  And by “nothing” I am not speaking metaphorically.  At that point anything and everything will be viewed as being on the table, up to and including outright assassination.  Grabbing the scalp of a senator is one thing; when the stakes are the Oval Office on the one hand or federal incarceration on the other, things become imaginable which otherwise never ever would.  When we reach that point we will be indistinguishable from some banana republic, from Mexico, from Putin’s Russia, from Cambodia, from North Korea.

So I heartily endorse the notion that Dear Leader will pardon Her for Her criminal actions in regard of The E-Mail Server and its cover-up.  The sale of office offenses I have a little more hesitation about, but if pushed would probably swallow that as well.  My hesitation in that respect arises from the unfortunate fact that sale of public office is so easily accomplished and so difficult to prove, and it may be practiced at all levels of government, and its unabashed practice — which would, by the way, be the inevitable outcome of Her getting away with it — has the independent ability to destroy the republic.

And the pardon must come from Dear Leader.  Everyone expects him to, anyway, for starts.  Secondly, such a pardon from a President Trump would in an instant destroy his credibility with everyone who — as I did — pulled the lever for him by reason of Her guilt.  If you want to destroy Trump’s presidency once and for all, have him grant Her clemency.

I would note that, because the FBI has an independent counter-intelligence function, pardoning Her will not end its jurisdiction fully to investigate and evaluate all those e-mails.  This is important, because the American people do deserve to know the full details of what She did while in office.

I would not, however, support clemency for Her raft of co-conspirators and enablers.  Exactly how many hundreds of people had to be in the loop on that illegal server, seeing what any fourth-grader could recognize as classified information flit to and fro?  How many bag men for the Clinton Foundation were there who made the arrangements with the foreign donors?  All of Her scheming could never have got off the ground were it not for the underlings.

Let us run a thought experiment:  I am some senior staff member to a senior government official.  I am given instructions by my chief that I know from the moment the words leave his mouth are flagrantly not just illegal, but constitute major felonies.  Thinking that my chief and I sink or swim together gives me a warm and fuzzy feeling, because I’m thinking he has the political pull to save himself, and by doing so will necessarily save me as well.  What if, on the other hand, I can look back and find ample precedent for the outcome that my chief, for whose benefit I am asked to commit multiple crimes, is going to skate and enjoy a long and remunerative retirement, while I go to prison?  Will I be more likely or less likely to go along with it?  How likely is it that my chief will organize a John Q. Zimmelfritz Legal Defense Fund to keep my country ass out of chokey?

What if senior staff at the State Department had refused to communicate with Her except across a properly authorized, secure government e-mail account?  What if She Herself had had to do all her negotiating favors for the King of Morocco, or the Russian uranium interests, or Ericsson for cash (like the $750,000 speech Bill gave to Ericsson’s board of directors, or the $500,000 speech he gave to the Moscow bankers financing Putin’s acquisition of 20% of U.S. uranium production capacity, or the $23 million that the king kicked into Her foundation), instead of having shoals of willing errand-boys and -girls?  I will tell you one very likely outcome of my alt-history:  We would be getting ready for our second President Clinton right now, because millions of voters — voters such as yore ‘umble correspondent here — would very likely have opted for Her, instead of Trump.

I don’t want to live in Central America, or Russia, or China, or North Korea.  I damned sure don’t want those places brought here.  Pardon Her, and be done with it.  To borrow from Cromwell:  In the name of God, go!

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