Should Hillary Still Be Prosecuted?

One particular cynical Twitter personality who shall go unnamed here tried to goad me a couple days ago into stating a position on whether I believe Hillary Clinton ought to be prosecuted for her email-related infractions. The idea was to demonstrate that “See, MT believes HRC ought to be prosecuted, which is evidence of his fundamentally fascistic inclinations.”

History shows us that the word “fascist” is infinitely malleable and often used to bludgeon political opponents all across the spectrum; communists accuse socialists of being stealth fascists, libertarians accuse paleo-conservatives of being literal fascists. It’s a way of delineating internecine, sectarian-ish debate — assert that your opponent’s designs are to enable or abet fascism, whether consciously or subconsciously. I could proclaim “I am not a fascist” right here in this post, but the people who would accuse me of such won’t take accept that prima facie anyway, so what’s the point?

Let’s review some recent history regarding Hillary and her potential criminality. Then you can let me know whether answering “Yes” to the question “Should Hillary be prosecuted?” necessarily means that one is supportive of fascism. (And also note that I haven’t yet answered the question myself.)

In the second presidential debate, Trump rattled off the remark, “Because you’d be in jail.”

He earlier claimed that he’d authorize a special prosecutor to resume investigative activity into Hillary’s email problems.

Clinton loyalists in the media were absolutely stunned and outraged at this exchange, spending several news-cycles screaming that Trump was a tyrant-in-waiting and that he had just obliterated more of their beloved “norms.” So the big idea at the time was that we were supposed to pretend that we didn’t know what a “special prosecutor” is — that somehow this is a new sinister Trumpian innovation rather than a longstanding feature of the American federal criminal justice apparatus. (For instance, Obama was urged to appoint a special prosecutor to investigate the George W. Bush administration’s torture policies, but declined. In fact, he ultimately immunized torturers from criminal liability.)

All right-minded observers at the time were mandated to declare that appointing a special prosecutor was somehow a hellish fascistic seizure of power, rather than a rather routine method of assessing facts and ascertaining whether statutes have been violated. Trump did add the additional flare of flippantly remarking, “Because you’d be in jail,” which could indeed be interpreted as “pre-judging” the outcome of the case, but Trump wasn’t threatening to extra-legally jail Hillary as pure political retribution. He was saying he wanted a special prosecutor because a lot of bad things had happened. But of course this was framed as “maniacal Trump wants to throw Hillary in jail without trial,” which is just wrong.

Recall — Obama once “pre-judged” a pending criminal case when he opined on the guilt of Chelsea (then Bradley) Manning. “He broke the law,” Obama said in 2011.

So we all agree that there is no grounds to extra-legally jail Hillary, and indeed no one (including Trump) ever proposed that. Is there grounds to convene a special prosecutorial inquiry? I could easily get deep into the technical reasons why the Hillary Clinton private server email investigation was riddled with all sorts of unexplained irregularities. Let’s just review a couple.

  • Top Clinton aides, including Cheryl Mills, were granted immunity by the FBI (or perhaps DOJ — it’s still unclear exactly who authorized this) in order to turn over their electronic devices, which were found to have housed classified material. The FBI could have taken a different route — it could have appealed for a search warrant and simply seized this property, but instead it took the curious tack of entering into negotiation with Mills’ counsel to grant her immunity from prosecution. It’s not necessarily uncommon to grant immunity in service of building a proper criminal case against other actors, but as we all know, the FBI never recommended any criminal case be brought, so the capricious dispensing of immunity deals is slightly odd. Even odder, the lawyer Mills was then permitted to accompany Hillary for her formal FBI interview on July 2, even though she had just been subject to criminal investigative action. (Same went for Heather Samuelson, another “lawyer” who wasn’t quite a “lawyer,” but who also accompanied Hillary.)
  • Bill Clinton buttonholed Loretta Lynch on a tarmac in Arizona in June. We all remember this. Bill Clinton himself was a potential witness in an ongoing felony criminal investigation at the time this occurred. Lynch later admitted that the meeting created an undesirable impression of how the investigation was being conducted. (Bill Clinton was never interviewed by the FBI, even though he is referenced repeatedly in the investigative notes, and Clinton Foundation equipment was used at various stages of the email archiving and destruction process.)
  • Various devices that apparently contain the entire HRC email archive (which includes classified material) are still out there somewhere, and were never recovered by the FBI. (We later learned that one such device was Anthony Weiner’s laptop, although that only appears to have contained a portion of the archive.)

I could go on. I’m not super interested in re-litigating the entire complex email investigation story, although I could certainly do so if people really want to. The point is, there are irregularities here that would warrant additional investigation, potentially even by a special prosecutor. Rep. Jason Chaffetz, who’s done a reasonably good job probing the FBI on this matter, says his committee will continue that work irrespective of the election outcome. And rightly so: getting to the bottom of these issues shouldn’t be contingent on whether Hillary was elected.

What this ultimately boils down to is not the merits of the email investigation, it’s whether political elites should receive special treatment under the law. One of the most searing moments of the general election campaign was when Hillary was told by a veteran at the “Commander-in-Chief” forum on September 7 that he’d be in prison if he did what she did. Let’s see: if he wasn’t a massively wealthy and powerful political elite, and he was confirmed to have mishandled classified information, and then he had destroyed relevant evidence, and defied a Congressional subpoena, and lied repeatedly about the nature of his conduct: would that guy have gotten in trouble? Probably. It’s not unreasonable for him to suspect that the answer to that question is “yes.”

So the issue of whether Hillary should be prosecuted ultimately has less to do with the merits of the email stuff and more to do with whether the law should be evenly applied. That’s always been my view.

Should Hillary be prosecuted? My answer is: if there is ample cause to believe that she violated statutes, then she should be treated like any other American, and not given preferential treatment on account of her wealth and power. If your answer to that question is an unqualified “no” — what’s the rationale? Because she’s “suffered enough”? Are you aware of the vast suffering that countless people endure everyday at the hands of the US criminal justice system? For crimes that are widely perceived as “less serious” than Hillary’s (alleged) crimes?

Should Hillary be spared prosecution because we all now want to “look forward, not backward”? That was the same rationale that Obama employed with respect to the Bush torturers, and which Trump now seems to endorse to some extent.

Whatever your view on Hillary’s potential prosecution, the idea that demanding equitable application of the law is somehow indicative of “fascist” motivation is just ludicrous and too stupid to even address head-on. If anything, it’s probably more “fascistic” to demand that the law be bent to accommodate the hurt feelings of powerful political elites like the Clintons. That kind of thing ultimately degrades the public’s faith in the fairness of “the system,” de-legitimizes these various institutions, and opens the door for demagogic, “fascistic” dissenters to fill the void.