Hillary and the FBI

Yet another milestone on the road to tyranny.

Bruce Thornton is a Shillman Fellow at the David Horowitz Freedom Center.

Beneath the drama of the primaries the FBI investigation into Hillary Clinton’s home-brew server keeps humming along, though one wouldn’t know it from the cursory coverage by the mainstream media. It’s not that there isn’t anything new to report. Romanian hacker Guccifer claims he got into Clinton’s server with ease, and the Kremlin asserts it’s in possession of 20,000 of her emails. Hillary’s standard verbal brush-off––“it’s a routine security inquiry” ––was exploded by FBI Director James Comey’s laconic “I don’t even know what that means … We’re conducting an investigation. That’s what we do.” But these new developments are dismissed by Democrats with increasingly desperate rationalizations and lies, and Republicans haven’t yet worked through the seven stages of grief over Donald Trump’s ascendancy, leaving little time to mine this scandal for electoral gold. 

The Republicans need to get on with it. Sometime soon the FBI will release its report, and just based on what’s leaked so far, Clinton should be indicted for mishandling classified material. But “should ain’t is,” as my old man used to say. There are several scenarios that can follow the report, and most will reveal just how we have fallen from the fundamental principle of representative government going back to ancient Athens: equality before the law.

In the first scenario, the FBI recommends an indictment. Supporters of this view cite the institutional culture and professionalism of the FBI, which will be angry if after spending so many thousands of man-hours Clinton gets to walk. There is talk of mass resignations, similar to the 1973 “Saturday Night Massacre,” when the Attorney General and Deputy AG resigned after Richard Nixon fired the special prosecutor investigating the Watergate break-ins. Others cite the professional integrity of James Comey as the rock upon which their hopes rest. If undercut by the Attorney General, he too will resign, creating a storm of negative publicity for Clinton and the Democrats. In 2004, Comey threatened to resign when White House aides pressured the hospitalized AG John Ashcroft to overrule Comey’s refusal to certify the legality of important aspects of the NSA’s domestic surveillance program. A few years later in Congressional testimony Comey stoutly defended the independence of the Department of Justice.

I hope this estimation Comey’s integrity is true, but when it comes to political appointees, we should take George Orwell’s attitude towards saints: guilty till proven innocent. The political rewards of not recommending an indictment would be huge for Comey if Hillary is elected president. Career FBI employees will have to make painful financial and career calculations about the effects of resignation. There are any number of ways the Bureau could spin such a recommendation in a way to let Hillary off the hook: no proof of intent, evidence of carelessness but not criminality, or throwing some staffers and aides under the bus. I believe there are men and women of principle in the FBI who can face these consequences and do the right thing. But we won’t know for sure until the time comes.

If resignations don’t follow a failure to recommend indictment, Hillary will reap a huge publicity windfall. She will crow about the “vast right-wing conspiracy” being thwarted by the integrity of the FBI. Her campaign will cite the months spent, the 150 agents on the case, and all the interrogations that turned up nothing. No matter how much scolding from the Bureau, she will trumpet her vindication as proof that the Republican Party has hounded her for 25 years because she’s a woman who cares for the little guy.

In the next scenario, Comey recommends an indictment, and AG Loretta Lynch demurs. Her recent suit against North Carolina for its law mandating that public restrooms be differentiated by biological sex is evidence of her progressive prejudices and disrespect for the separation of powers and federalism. Her interpretation of the Civil Rights Act’s language about discrimination on the basis of sex as justifying her suit is fatuous, and usurps the law-making power of Congress. No Congressman in 1964 believed that “sex” meant anything other than biological sex. Lynch is a “living Constitution” acolyte who feels justified in “interpreting” the language of law to suit ideological and political prejudices. Her public statements against state voting requirements and her support of Obama’s abuse of executive orders are revealing of the same tendencies.  

With such a record of partisanship, it is very likely that she will refuse to indict Clinton. Or, if the bad publicity of such a decision would be too intense before the election, she could draw out the deliberation process for months, and then refuse after Hillary’s sworn in. Or if Hillary didn’t win, I could easily see Obama granting her a preemptive pardon before he left office, just as Gerald Ford pardoned Richard Nixon in September 1974. There could be blowback, but Obama would be off to six-figure speaking gigs and an eight-figure advance for his memoirs. 

If this scenario unfolds, make sure to remember some of the culprits: those Republican Senators who confirmed Loretta Lynch as Attorney General. Whether they confirmed her out of fear of being called racist and sexist, or a sincere belief in her qualifications, or a gesture of bipartisan comity, their confirmation will share some blame for Hillary escaping legal and political accountability for sacrificing this country’s security to her ambition.

But the worst consequence of Hillary’s disregard for the law will be the blow to the foundational principle of representative government. Politics began 2500 years ago when power was based not on men because of their wealth, charisma, or prestigious ancestors, but on laws that applied equally to all citizens. Power was no longer a personal possession, but belonged to the body of citizens, to be used by them according to transparent rules and procedures that limited the scope of such power and held those who used it accountable. This same fundamental principle animated the Founders who, as John Adams put it, created “a government of laws, and not men,” for all men are vulnerable to the temptation to abuse power.

This principle of divided, distributed, and accountable power that men use, not own, is the greatest protector of our freedom, for it protects us from tyranny, which Aristotle defined as

that arbitrary power of an individual which is responsible to no one, and governs all alike, whether equals or betters, with a view to its own advantage, not to that of its subjects, and therefore against their will. No freeman willingly endures such a government.

We have already drawn closer to such tyrannical power. From government agencies like the EPA and the IRS, which are responsible to no one, arbitrarily abusing their power against the will of the citizens; to progressives like Barack Obama and Hillary Clinton, who recognize no limits to their will and bend the law to suit their personal ambitions and ideological dogma. For all their talk of “equality,” they live in the world of Animal Farm, where “All animals are equal, but some animals are more equal than others.” The Constitution, the rules of the State Department, the laws governing the handling of classified material, none of these apply to Hillary. Letting her get away with this outrage will be, like Obama’s disregard for the law, yet another milestone on the road to tyranny.