Prosecutorial discretion: sometimes…

The New Neo Posted on by

…as we saw yesterday, prosecutors make a seemingly politically-motivated decision not to prosecute a case even though the offense that has been committed satisfies all the elements of the crime and then some.

And sometimes, as we’ve seen in the recent past (see this and this, for example), prosecutors make a seemingly politically-motivated decision to go ahead and prosecute a case even though the case is very weak or even non-existent, or even if they have to cheat to do it.

Another example of a politically-motived prosecutorial decision to prosecute weak or nonexistent cases involves the decision to go ahead with the trials around Freddie Gray’s death. The fourth in the series will begin tomorrow.

The Comey announcement fallout: what now for Hillary and Trump?

The New Neo Posted on by

[NOTE: See my previous posts on the Comey announcement about Hillary Clinton’s email server violations, here and here.]

So now we know for sure that there will be no Hillary Clinton indictment, and that she will almost certainly be the Democratic nominee.

Will the fact that Comey deemed her to be if not criminally liable, then “extremely careless,” matter? Chris Cillizza of the WaPo seems to think it might:

It’s hard to read Comey’s statement as anything other than a wholesale rebuke of the story Clinton and her campaign team have been telling ever since the existence of her private email server came to light in spring 2015. She did send and receive classified emails. The setup did leave her ”” and the classified information on the server ”” subject to a possible foreign hack. She and her team did delete emails as personal that contained professional information.

Those are facts, facts delivered by the Justice Department of a Democratic administration. And those facts run absolutely counter to the narrative put forth by the Clinton operation: that this whole thing was a Republican witch-hunt pushed by a bored and adversarial media.

For a candidate already badly struggling on questions of whether she is honest and trustworthy enough to hold the office to which she aspires, Comey’s comments are devastating. Watching them, I could close my eyes and imagine them spliced into a bevy of 30-second ads ”” all of which end with the FBI director rebuking Clinton as “extremely careless.”

Cillizza then points out that Hillary is almost certainly going to be facing Donald Trump as her opponent, and this is to her benefit. I tend to agree that in general Trump is one of the worst candidates possible to face Hillary. And yet…and yet…Trump is probably particularly well-positioned to take advantage of Comey’s decision by hammering home two memes he has recently developed (even before this ruling): “crooked Hillary” and the idea that the system is rigged. The two converge quite nicely in the Comey announcement, so for those not predisposed to like Hillary, and those who thought she could and should be indicted, they could certainly resonate rather loudly.

But the vast majority of Democrats, low information voting Independents, and the like, will not care one whit about the details of Comey’s speech. They will read the headlines, learn that Hillary’s not going to indicted, and translate that into “she’s innocent” or “what a tempest in a teapot” or “what difference, after all, does it make?” And many will tell themselves exactly and precisely what Cillizza thinks the Comey statement ought to put to rest: the idea that “this whole thing was a Republican witch-hunt pushed by a bored and adversarial media.”

I hope I’m wrong on that last bit.

The FBI’s failure to recommend a Hillary prosecution: what’s “intent” got to do with it?

The New Neo Posted on by

{NOTE: See my previous post today on certain other aspects of the Comey announcement. The present post deals with some of the legal issues.]

When I first read the Comey statement I wondered why he was talking so much about lack of intent. Was intent an element of the crime? In law, intent is sometimes relevant and sometimes not, and therefore it’s not just an idle question. The way a statute reads on the question of intent matters very much as to whether a prosecutor need worry about whether that element is present.

So I wanted to take a while to learn whether intent mattered in the case of Hillary Clinton and the emails. I knew that certain respected legal minds would be weighing in on this, and Andrew McCarthy has done so in record time:

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. Director Comey even conceded that 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.

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.

In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require.

I don’t see how it could be more clear than that. And that, to me, is the essence of the problem—not whether we’d like Clinton to be prosecuted, but whether she should have been prosecuted if you’re interested in the rule of law. As I said in my previous post, I believed the Comey decision would be political. It needn’t have been, but it was, and to have made a more objective decision based on the law rather than politics would have taken a much bigger person than James Comey—and I believe that such persons are rare, particularly in public life, but not just in public life.

McCarthy continues:

The added intent element [added by Comey], 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…

…[W]hat the FBI has done today [is to have] 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.

You can feel McCarthy’s pain in trying to reconcile what he knows of Comey’s integrity and what he also knows about the law and the gross insult to the law that was perpetrated today.

Comey: FBI does not recommend bringing charges against Hillary

The New Neo Posted on by

In announcing that the FBI does not recommend bringing charges against Hillary for matters related to her private email server, Director James Comey said in effect she’s a fool, not a knave.

The complete text of Comey’s statement can be found here, and it basically says there was wrongdoing in nearly every conceivable way but no intent. I plan to write another post analyzing the decision in the legal sense, but the post I’m writing now is going to deal with it in the political and psychological sense.

Those who read this blog regularly know that I’ve said that Hillary would absolutely not be indicted, and that I’ve never wavered in that prediction. That really wasn’t a difficult call either; it simply seemed inevitable that it would not happen under a Democratic administration unless that administration decided it should happen, and despite some enmity between Obama and the Clintons it has long been my conclusion that Obama has decided that Hillary will be just fine for carrying on his legacy, and that he supports her candidacy.

The decision to prosecute in such matters is always completely discretionary—always. Maybe there are some exceptions, but to compel the indictment of a politician against the will of an administration, the smoking gun has to be not only smoking, but held in the perp’s hand and on camera in full view of the public. Even then, I’m not so sure it would matter.

There are some lines in T. S. Eliot’s poem “The Love Song of J. Alfred Prufrock” that popped into my head while thinking about Comey’s decision. In the poem, the decisions are not legal ones about a presumptive nominee for president, of course; nothing of the sort. But portions of the poem seem appropriate nevertheless, because they describe the process of making a risky decision and deciding to punt rather than be bold:

There will be time, there will be time
To prepare a face to meet the faces that you meet;
There will be time to murder and create,
And time for all the works and days of hands
That lift and drop a question on your plate;
Time for you and time for me,
And time yet for a hundred indecisions,
And for a hundred visions and revisions,
Before the taking of a toast and tea…

And indeed there will be time
To wonder, “Do I dare?” and, “Do I dare?”…
Do I dare
Disturb the universe?
In a minute there is time
For decisions and revisions which a minute will reverse…

Should I, after tea and cakes and ices,
Have the strength to force the moment to its crisis?
But though I have wept and fasted, wept and prayed,
Though I have seen my head (grown slightly bald) brought in upon a platter,
I am no prophet ”” and here’s no great matter;
I have seen the moment of my greatness flicker,
And I have seen the eternal Footman hold my coat, and snicker,
And in short, I was afraid.

And would it have been worth it, after all…

To have indicted Hillary would have been to disturb the universe. It may have even entailed personal danger for Comey; who knows what forces would have been arrayed against him, what pressure was brought to bear already? None was even required, however; the man could probably figure it out for himself, and it there was a way out of doing it, and a reason he could give, he was going to take it and escape the whole problem. And so he did.

[NOTE: As I said, I’m planning to write more. But I just want to add something about Comey’s history. He was originally appointed as Deputy AG by George W. Bush in 2003, after having been US Attorney for the Southern District of New York. In his capacity under Bush in the DOJ, he objected to certain aspects of the NSA surveillance program (it’s not clear exactly which ones). He left for the private sector in mid-2005.

It is not at all clear to me what Comey’s politics are. My guess is that he’s somewhat of a centrist, if that. Being appointed AG by Bush doesn’t tell you much; it’s interesting, for example, that in 2009 he was reported to have been under consideration as SCOTUS justice by Obama. That certainly wouldn’t indicate conservatism, to say the least. In 2013 he signed onto a brief supporting same-sex marriage, and later that year he was nominated by Obama as head of the FBI.

Comey has some other interesting experience involving the Clintons and their various legal issues, including the Whitewater investigation of Hillary and Bill and the look into the pardons Bill issued towards the end of his presidency. You can read some of the details here. With Whitewater, Comey was a deputy special counsel to the investigative committee in the Senate. He was the head of the pardons investigation. In both cases the results were similar: lots and lots of wrongdoing was found, but no charges brought. That is the way the present investigation was always going to end.

By the way, Comey also is the person who prosecuted Martha Stewart, as well as heading the (Valerie Plame) Scooter Libby investigation and prosecution. Both Stewart and Libby were given prison terms, and Stewart actually went to prison.]

[ADDENDUM: You can find some of the Twitter responses here.]

On liberty—Happy Fourth of July!

The New Neo Posted on by

[NOTE: This is a slightly-edited version of a previous post.]

statueliberty

The Fourth isn’t just about barbecue, although I defer to no one in my regard for barbecue.

It’s about liberty. As the years go by, I appreciate that fact more and more, and sense that our liberty is more and more threatened from within as well as without—and by “within” I mean not just those among us who would destroy it for others, but something in the human heart and mind that means not everyone cares very much about it until they have lost it.

In fact, there’s something in many human hearts and minds that leads some people not to care about liberty even after they’ve lost it, unless they’re the ones in the Gulag.

For whatever reason, I’ve always been very sensitive to liberty, very touchy about it. For example, even when I was quite young, I would pay extra for a health insurance policy that gave me total freedom to choose my doctor. This may seem like a small thing, and at the time I didn’t connect it with any abstract principle such as “liberty.” But I had a horror of being boxed in by a government or a business or an agency telling what I could or could not do and where I could and could not go.

That’s not to say that I was some trailblazing, independent, courageous spirit, cutting an adventurous swath through the world. I lived a pretty ordinary life, I thought. I had a husband and a child. And even later, when I went through my political change, I had no idea where it would lead, either socially (estrangement from quite a few people, mostly mild but sometimes severe) or in terms of what I do with a great deal of my time (reading about politics/history, and writing this blog).

One doesn’t always have any idea where it will lead when you take a step, and then another step, and then another, and pretty soon you’re somewhere you never, never ever, thought you’d be.

When I was young I used to assume that a lot of people, the majority of people, felt the same way I did. Not just about liberty, but about a lot of things. For example, I thought just about everyone loved poetry—what’s not to like? I was in my thirties before I became aware that love of poetry was a relatively rare thing. Another thing I assumed, when managed care started taking over the health insurance world, was that more people would hate it and complain bitterly about it—and, if they could do it, would pay extra to get away from it. But I was surprised when so many people I knew didn’t seem all that offended by it, and even those who could have paid more in order to have choice often decided against it. They couldn’t be bothered, and were happy to save the money.

Then, when I was going through my slow political change between the fall of 2001 (post-9/11) and 2003, I was living a rather isolated life in a place when I hardly knew anyone, newly separated from a husband I’d been with for 30 years. I was also recovering from a very painful arm injury and surgery. So the change experience was a solitary one, and I didn’t start mentioning it to people until after it was pretty much complete some time in 2003.

I had somehow assumed that other people had been going through something similar to my political journey, although perhaps milder. This now seems to me a rather humorous thought, not to mention profoundly naive (you might even call it stupid), but that’s the way it was for me. I was truly shocked to be on the receiving end of a significant amount of hostility from a lot of people when I mentioned my positions on various issues of the day, and this sometimes involved friends and acquaintances I’d known for decades and with whom I’d never even discussed politics before or had a single disagreement of any substance.

Talk about an eye-opener.

Now I have a different way of looking at all of this. Continue reading →

Medea in Texas

The New Neo Posted on by

You’ve probably heard about Christy Sheats, 42, the Texas mother who recently killed her 17- and 22-year-old daughters in front of their father, citing as her motivation a desire to punish him (she committed the murders on his birthday). The daughters and husband managed to escape to the street, but the mother shot the girls again. The mother was then killed by police when she refused to drop the gun—a case, I believe, of suicide-by-cop.

There are many especially horrific and chilling elements to this crime, including 9-11 tapes that record the young women’s pleas, and the fact that the older daughter was due to be married in just a few days.

The husband survived, but only by running to a neighbor’s house and being let in while his wife went back into the family home to reload. Of course, the word “survive” is relative. Although he was not wounded at all, physically, the psychological scars will almost certainly be intense and lifelong.

Which may have been what Christ Sheats wanted, if you can believe the newspaper reports. The fact that the shooting happened in front of him and he was not injured suggests as much, as well. The couple had been estranged for some time and had recently reconciled (although there are also reports that he had just announced his decision to get a divorce), and although we don’t know what caused the separation, it’s reported that Christy had a history of mental illness and suicide attempts and/or threats.

That’s easy to believe.

When I heard the story I almost immediately thought of Medea, the legendary figure of Greek tragedy who killed her two sons to get revenge on a husband who had left her for another woman. In a strange coincidence, Medea’s husband’s name—Jason, of Jason and the Argonauts—was the same as that of Jason Sheats, Christy Sheat’s husband.

Medea’s name has become a symbol for almost unimaginable hatred and desire for revenge on a spouse, through the act of a mother killing the people the spouse loves most dearly (and the people the mother should love most dearly, too), their shared children. It is a revenge so twisted and so deep, so killing in every sense of the word, that the story has lasted for millennia.

There have been many artistic renditions of the crime, but here is one by Mucha, a poster for Sarah Bernhardt in the role:

medea

Because of my dance background I also thought of one of the greatest of all modern dance choreographers, Martha Graham, who choreographed a piece called “Cave of the Heart” in 1946-7 that was roughly based on the Medea legend. There’s a spectacular solo passage that portrays Medea’s decision to murder her children. “Frightening” is not usually a word associated with dance, but this is one of the most frightening dance sequences you’ll ever see—maybe even the most frightening—and it is almost overwhelming in its intensity:

…as shaking movements begin, [Medea] is revealed to be possessed by something…As Medea pulls a red scarf from the top of her leotard, she reveals that this red scarf and the evil decision it represents is what is causing her turmoil; the fact that it symbolically comes from within, from the place of her heart, embodies the emotional and painstaking nature of her inner struggle…Medea holds the scarf over her head, showing it off with pride to depict her sense of strength and the glory of revenge…She wrestles with it, literally wrestling with her decision. Toward the end of the solo, Medea pulls the scarf tight between her hands and holds it above her head once again, revealing her final control and security with her plan…

The red scarf itself can be interpreted to symbolize various things. An initial interpretation is that it represents the actual decision of Medea having to kill her children…It could also represent her revenge on Jason for abandoning her and marrying a new wife in a more general sense, because of the smirk on her face during the climactic parts of the solo and the sense of satisfaction it suggests…A co-creator of Cave of the Heart, Isamu Noguchi, said that for her “Medea dances with a red cloth in her mouth. She is dancing with [a] snake in her mouth. Then she spews it out of her mouth like blood” (De Milles 279). This suggests that the scarf embodies evil itself, in regards to the Judeo-Christian biblical symbol of the snake as corruption and sin. The reference to blood also suggests the symbolism of the blood of Medea’s children, their life and death which are both in the hands of their mother.

And here is the solo in rehearsal. Even the studio version, with this petite dancer, conveys some of the force of it. The word “possessed” really does come to mind (you might want to watch it full screen):

Have you noticed…

The New Neo Posted on by

…that many liberals seem far more perturbed about Bill Clinton’s talk with Loretta Lynch than they are with anything Hillary Clinton has done?

The disclosure of the meeting has raised questions about the integrity of the investigation. Lynch’s promise to accept without modification the recommendations of the F.B.I. has removed a potentially sympathetic voice from the process. And the enormous publicity over the event will increase the pressure on investigators not to show any leniency in the case. Whatever Bill Clinton thought he was doing, he has cast a pall over what should have been his wife’s most triumphant moment in politics.

One of the most interesting aspects of the article is the assumption that this was done without Hillary’s knowledge or approval. Maybe yes, maybe no, but I certainly wouldn’t assume it.

Patterns of Islamic extremist terrorism: now it’s Bangladesh

The New Neo Posted on by

It’s a terrible and repetitive story, this time occurring in the predominantly Muslim country of Bangladesh: Islamic terrorists, perhaps allied with ISIS, attack a restaurant. In this case they took the patrons hostage (after possibly killing some in the initial takeover), and the ensuing events were described this way in a Bangladesh paper: Continue reading →

Cruz vs. Jeh Johnson on Islamic terrorism

The New Neo Posted on by

This clip features an exchange between Senator Ted Cruz and Homeland Security head Jeh Johnson that occurred during the Senate hearing on ““Willful Blindness: Consequences of Agency Efforts To Deemphasize Radical Islam in Combating Terrorism.” In it you can see what a great lawyer Cruz is, and how he maintains a calm and even tone as he wields the verbal stiletto. Johnson manages to reveal his own condescending attitude:; he seems to resent even being asked the questions:

Gingrich flip-flops on free trade

The New Neo Posted on by

Well, of course:

Former Speaker Newt Gingrich, under consideration as Donald Trump’s running mate, is dropping his decades-long support of free trade deals and picking up Trump’s strongly protectionist position.

“I basically agree with Trump’s speech on trade,” Gingrich said in an email to POLITICO on Friday.

Citing China’s taking of American intellectual property and the fact that the country is now in “a different era,” Gingrich said he had moved closer to the position of the presumptive Republican nominee.

That represents a significant shift for Gingrich, who championed trade agreements while a congressional leader…

Well, I’m all for people changing their minds in light of changing circumstances. But until very recently, I don’t think Gingrich had changed his position one iota (the article mentions the first rumblings as having occurred in May), although the “different era” he appears to be referring to did not just start a month or two ago. But the real “different era” is most likely the era that could be ushered in by Donald Trump selecting Newt Gingrich as his running mate.

Politics makes interesting bedfellows.

Here’s the rhetoric of Gingrich on this back in the 90s:

When the House approved the [NAFTA] pact, Gingrich declared, “This is a vote for history, larger than politics, larger than reelection, larger than personal ego.”

Ah, but nothing is larger than the personal ego of most politicians, I’m afraid.

Again, it’s certainly possible that Gingrich has had a bona fide change of mind and heart, and that he would have had it even without the candidacy of a Trump and the chance of his own elevation into a position of power after years in the wilderness. Possible, but hardly likely.

[ADDENDUM: Because it seems a couple of commenters may not have caught one of my points, I think I’ll emphasize it more clearly: Changing one’s mind on this would be a bona fide position to take if it’s a bona fide change of mind. But nothing has occurred since May””which as far as I can tell is when Newt Gingrich made his first reference to his change of mind””that would account for it except his own alliance with Trump and his ambition to be named by Trump to some post or other.

If he had changed his mind earlier and spoken about it, that would have been fine. The conditions for changing one’s mind on this have been present for a long long time, however. So it’s the timing that makes this suspect, not the change of mind itself.

Bill Clinton and Loretta Lynch: they’ve got to stop meeting like this

The New Neo Posted on by

Why did Bill Clinton and AG Loretta Lynch have a chat this past Monday? No one knows, although that doesn’t stop everyone from speculating. Lynch says it was purely social—golf, grandkids, you know the drill. For about 30 minutes.

The ABC article I just linked to added this:

The meeting was a chance encounter as the two crossed paths at Sky Harbor International Airport in Phoenix, according to Lynch.

“As I was landing, he was headed out,” Lynch said at a press conference Wednesday. “He did come over and say hello and speak to my husband and myself.”

When I first heard the news several days ago, I pictured them strolling past each other by accident (with their respective retinues, of course), recognizing each other, and having a chat. That’s the way one would ordinarily interpret “chance encounter” and “crossed paths.”

But that’s not what happened. Actually, “Clinton was about to leave Phoenix when he was informed Lynch was arriving,” and he went to her private plane to have the conversation.

That’s a “chance encounter” in the sense that it probably wasn’t planned way ahead of time, but in order to “cross paths” a rather large effort had to be made. They did not just bump into each other in the corridor.

At any rate, we don’t know what was said. However, AGs and people connected with a matter that’s being investigated by that AG are not supposed to have conversations about golf or anything else. They’re supposed to scrupulously avoid any situation that has the appearance or impropriety or offers the possibility of impropriety. Both parties here are and/or should have been well aware of that. Anyone who pretends otherwise is either ignorant or disingenuous.

The repercussions in terms of what will happen to Hillary Clinton are unknown, but the upshot is that in the ensuing hue and cry over the meeting, Lynch has said she will accept the recommendation of the FBI in the matter of the Hillary Clinton investigation. That leaves FBI Director James Comey in a more powerful position than anyone had expected.

Unless, of course, Lynch wanted for some reason to get off the hot seat on the Clintons. I don’t happen to believe that; I think Lynch wanted to remain in the position of being the driver on this no matter what the FBI said.

Professor William Jacobson of Legal Insurrection says that it’s even worse than it looks on the surface, and that Lynch should resign:

The NY Times and initial reports on MSNBC indicated this was tantamount to a recusal, but the DOJ is now walking it back just a little, saying the likelihood of her overruling the FBI is very low, but not zero.

I pointed out on June 29 that the real story here is not just the meeting, but also that Lynch and Clinton kept it secret until a local reporter found out about it…

But for that sleuthing local reporter, the public never would have known about the grossly improper meeting between the husband of a woman (Hillary) under FBI investigation and as to whom Lynch has the ultimate power to prosecute or not.

As Larry O’Connor at Hot Air points out, it’s even worse than that because Bill Clinton himself and the conduct of the Clinton Foundation are under investigation. So Lynch not only met with the husband of someone under investigation, she met with someone whose foundation is under investigation…

And, on top of that, O’Connor points out, there was an active effort to conceal the meeting, with FBI and Secret Service preventing photos or video…

Professor Jacobson also points out that President Obama has previously commented on the Cllinton email furor and that this constitutes “impermissible interference, signalling to the FBI what is expected of it.”

A Lynch resignation is not going to happen, IMHO. And of course the FBI knows what’s expected of it, probably even without any signaling from Obama. Everyone knows what’s riding on this, with Hillary Clinton the presumptive Democratic nominee for president.

I have said from the start that I do not believe Hillary Clinton will be indicted, although I think it’s fairly clear that she should be. I was basing that, however, on the idea that the DOJ (Lynch) would be making the decision. I still think it will go that way (note that the Times has planted the seed of the idea that Lynch still could overrule the FBI if need be), but it is slightly less in the bag. Only slightly, however. This is way too big a deal to be left to the judgment of people who are impartial.

Of course, if Clinton is indicted—and depending on who replaces her—the Democrats may be more likely, not less, to win the presidency than if she were running.

Ted Cruz’s dream voice

The New Neo Posted on by

At the tail end of this post from yesterday I wrote:

The GOP could have nominated Cruz this year, but it did not. Ooooooh, that awful voice, right?

I’ve never had a moment’s problem with Cruz’s voice—or his nose, or any other part of his physiognomy, for that matter. But a lot of people did, and some of them were conservatives who would ordinarily have been his natural supporters in terms of policy.

In that same post there was some more give and take on that, with commenter “vanderleun” offering this video. But I actually think the right video to watch is this one: