Democratic presidential candidate and former Secretary of State Hillary Rodham Clinton, takes a sip from a cup in the final hour of a marathon testimony on Capitol Hill in Washington, Thursday, Oct. 22, 2015, before the House Select Committee on Benghazi. (AP Photo/Jacquelyn Martin)

Comey and Lynch’s Pre-Pardon of Hillary: It’s a Pity Thing

FBI Director James Comey and Attorney General Loretta Lynch acted beyond their moral and judicial authority in refusing to prosecute Hillary Clinton. It must have been pity, because the only other possibility is outright political hackery and banana-republic shenanigans.

Comey used a legal term of art in his “unusually transparent” presser Wednesday. The term was “reasonable person.” Erick covered that, in the FBI recommending no charges, they must assume Clinton lacks mental capacity to form intent.

About the only thing we can conclude is that Hillary Clinton lacks mental capacity. She did all the things that no reasonable person would do, according to the FBI Director. She held a press conference and made statements that directly contradict the truth. She lied to the American people or, if we stay consistent with James Comey’s position, Hillary Clinton had no idea whatsoever what she was doing.

Of course, the FBI lacks the mandate to form opinions on mental capacity to commit a crime. That would be up to a judge. The DOJ decided beforehand that it would “follow the FBI’s recommendation” without giving any kind of legal review. Remind me why we have a Department of Justice and prosecutors? Why not let the FBI do it all?

So it had to be pity instead.

Comey used another legal term of art, “gross negligence.” He applied that against what he called Clinton’s “extremely careless” conduct. This goes to what attorneys tell me is called “Mens Rea” or the intent to do the act with which you’re being charged.

My friend and former District Attorney Kelly Burke laid it out this way.

Mens Rea is an interesting issue. I contend that you ALWAYS need to have intent, but that doesn’t mean intent to break the law. If your intent is to do the act, whether you know that the act is illegal or not is irrelevant. (The ol’ ignorance of the law thing).

Gross negligence is proven by intent to be sloppy. Intent to look the other way. Intent to ignore consequences. She’s guilty as hell of that, and that is all the FBI needed to forward the charge.

Comey, an experienced federal prosecutor who could stand toe-to-toe with Chris Christie any day, decided to add a little more to the “intent” than what the law states. From David French writing in The New York Times:

The relevant statute places a special burden on public officials to safeguard national secrets, making it a crime to remove national defense information from its “proper place of custody” even through mere “gross negligence.” There is no requirement of finding specific intent.

Yet in explaining why he believed that “no reasonable prosecutor” would seek to indict Clinton, Comey didn’t refer back to this standard. Instead, he made up his own – declaring that prior prosecutions included elements like “willful mishandling,” “indications of disloyalty” or “efforts to obstruct justice.” Yet these factors don’t define the crime, they merely exacerbate it. The crime itself depends on gross negligence, not these aggravating factors.

In other words, Comey required Clinton to have intent to break the law on purpose for some specific reason, not to merely be grossly negligent, which in itself is a violation of the law. Put another way, from Burke:

You are doing 85 in a 70.

“I didn’t know the speed limit was 70, officer.” You lose.

“I think my speedometer is broken, it said I was doing 70.” You lose, but a judge might let you go if you have no record. It’s a pity thing though.

“I was on my way to the hospital with my pregnant wife.” It’s a good excuse, but you were speeding. You lose.

Comey didn’t act as a law enforcement investigator, which is his mandate. He didn’t act as a prosecutor, which is his background. He acted as a judge showing pity by dismissing a charge because the defendant had a good excuse.

In this particular case, the excuse was “I’m Hillary Clinton.” And they pitied her. Because the only other option would be that they did it for purely political reasons, and that would be a scandal of enormous proportions.

About the author

Steve Berman

The old Steve cared about money, prestige, and power. Then Christ found me. All at once things changed. But the Holy Spirit produces this kind of fruit in our lives: love, joy, peace, patience, kindness, goodness, faithfulness, gentleness, and self-control. There is no law against these things!

I spent 30 years in business. Now I write and edit. But mostly I love. I have a wife and 2 kids and a dog and we live in a little house in central Georgia.

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