“Let me be clear–We’re not saying that someone who did something similar wouldn’t have charges brought against them. We’re just not bringing charges in this particular case.” – FBI Director James Comey from the press conference.
“I knew it.”
This is the general sentiment from Americans after FBI Director James Comey said today that his office would not be recommending criminal charges from the Department of Justice against Hillary Clinton. We all saw this coming. The Right is angry; the Left is smug. But let’s dispel a few legal myths.
- Prosecutorial discretion does exist, but that doesn’t mean it cannot be abused.
Prosecutors, including federal officers, make judgment calls about the evidence in cases. They choose which charges to file, if they file at all, and whether in some instances (like this one) convene a Grand Jury for that purpose. And it is supposed to be based on what the evidence shows. Because prosecutors have discretion, it is imperative that this power not be abused. Prosecutors should act like umps and fairly call balls and strikes, not act as Mrs. Clinton’s first base coach.
Ironically, discretion is most often abused to over-prosecute when there is really not sufficient evidence to meet the legal standard for bringing a case, but the prosecutor does so anyway for political or personal reasons. However, prosecutors can abuse their discretion by choosing not to pursue criminal charges for personal or political reasons.
This is why “special prosecutors” exist—when a certain office has too close connections with the suspect, or a particular prosecutor’s relative or friend is charged, special prosecutors are called in to avoid any appearance of impropriety.
Why was this not done here? Attorney General Loretta Lynch has close personal and professional connections with the Clintons, having served on the legal advisory team during Whitewater in 1992. She even met with fmr. President Bill Clinton mere days ago in a “chance” meeting at an airport. In any other legal circumstance, those facts alone would require a special prosecutor.
During trial, if I even happen to so much as make eye contact with a juror outside the courtroom in the hallway, I am forbidden by law to interact even with pleasantries (such as discussing grandchildren) without reporting it to the presiding judge for a determination of contamination and improper influence.
Why has the integrity of prosecutorial discretion clearly not been preserved here? This case is absolutely a departure from standard prosecutorial practice, and for no logical or legally justifiable reason.
- Hillary has not been “proven innocent.”
Inevitably, everyone suddenly becomes experts in legal jargon when a major legal issue arises in the media. But it’s incorrect to say that the FBI recommending an action to the Department of Justice has in any way “proven” anything. Mrs. Clinton has not been indicted nor has a judge or jury made any findings of fact on the evidence.
Nothing has been “proven” here either way. This is why the Right is so angry—Mrs. Clinton was not charged like any other person in the same or similar circumstances. She was not made to stand trial, in which she would have been afforded the same Rights of due process that any other defendant in an American court is provided through Constitutional protections.
As a constitutional conservative and attorney, I have no problem affording Mrs. Clinton each and every one of her Constitutional legal rights, including placing the burden of proof squarely on the prosecutor’s shoulders. What I do have a problem with, as a defense attorney, is a government that makes me defend the Rights of my clients in court in cases of prosecutorial abuse of discretion and doesn’t compel Mrs. Clinton to do the same because of that same prosecutorial abuse of discretion.
The Left should stop being so smug. All that has been won is a political baseball game, but it’s the winning and the perception that the Left cares about—not finding the truth, which is the essence and legal definition of justice.
- The recommendation from the FBI does not mean that the case is over.
The FBI’s recommended action is simply that—a recommendation. The FBI is not the prosecutor—the Department of Justice is the holder of discretion. The DOJ could still choose to exercise its prosecutorial discretion and pursue a criminal action against Mrs. Clinton and submit the findings of the investigation to a Grand Jury to preserve integrity. In reality, we all know that’s not going to happen, but had the FBI recommended that the DOJ pursue an indictment, the DOJ still could have declined that recommendation. Today’s statement from Comey simply makes the DOJ non-action look a little bit more justified.
This is precisely why a special prosecutor and unbiased review source is critical to due process—not just for the subject of the investigation, but for the victim as well. Many states have a Victims Rights Amendment for precisely this purpose: victims are not legally parties to the case, but what happens in the case may adversely impact their interests and connection to the case, and so the legislature has determined that victims have rights to some of the procedural due process elements over the lifespan of a criminal case.
The American people, the Secretary of State’s employers in a constitutional republic, are the victims here. Her alleged actions may have adversely affected her service to the United States. I say “alleged” and “may have” because while she has not been “proven innocent,” she has not been proven guilty yet either—the point is that we simply don’t know everything. We know enough to get to a Grand Jury, but we don’t know everything yet. That itself is the primary problem with this entire investigation.
The DOJ should have pledged to refer the matter to the Grand Jury regardless of what the investigation showed—simply to preserve prosecutorial integrity—and especially after what the investigation did show.
Comey today admitted that there was “sufficient evidence” against Mrs. Clinton, yet he provided no legally justifiable reason for declining to recommend action. 110 emails over 52 email chains that contained classified information. In any normal legal scenario, that’s at least 52 separate counts—all felonies.
What was so odd and also predictable about his statement was that he started out by saying that no one in Justice knew what he was going to say (I’m calling BS on that one) and then he spends a full ten minutes prefacing his recommendation—much like a judge spelling out every piece of evidence and legally relevant fact he took into account so that when he hands down his decision, he’s less likely to get reversed by the court of appeals.
And the American people are just watching in the stands, helpless. This is the whole baseball game.
We should be afforded our victims’ rights, which certainly provides more than a mere statement from Comey. We should be afforded the opportunity to have meaningful input. We should be afforded the opportunity to review all of the evidence, particularly as an electorate who may be re-victimized should Mrs. Clinton continue in public office.
Yeah, we all “knew it” and that it would happen this way. But we have every legally and constitutionally justifiable right to be angry at a corrupt executive system that treats people differently depending on whether their surname is “Clinton.” Justice has not been served in any modicum of fairness to America.
Jenna Ellis is an attorney, professor of law at Colorado Christian University, and international speaker.
Email Jenna at firstname.lastname@example.org