Hillary Clinton and the law


“A contempt of the laws is the high road to anarchy.”

— Alexander Hamilton

Hillary Clinton’s email scandal and the Clinton Foundation scandal are back in the news, as they are likely to be for years to come. At his confirmation hearing, Attorney General-designate Jeff Sessions said he would recuse himself from all investigations involving the Clintons.

Last November, President Donald Trump said that his preference was for no further investigation of Hillary Clinton or the Clinton Foundation. A decision (which does not seem to have been made yet) not to continue any investigation raises at least three concerns:

1). Deciding whether to prosecute someone isn’t normally the president’s decision to make. It’s the job of “the system.”

“The system” may sound amorphous, but in fact “the system” is what we call “the rule of law.” That rule is not just an arcane concept that interests lawyers and public policy mavens. The rule of law is probably the single most important governing concept we have — far more important than democracy. The rule of law elevates the weakest citizen to the level of the most powerful.

In this case, the rule of law would see the FBI and the Justice Department make the determinations whether or not to continue investigating and to prosecute. Nevertheless, the attorney general can always exercise prosecutorial discretion and decide to drop an investigation without necessarily traducing the rule of law. And if the AG (in this case the deputy AG, Mr. Sessions having recused himself) can make that decision, so can his boss, the president.

2) Dropping the case raises the question of fairness.

Fairness may be an elusive concept; even so, we tend to know it’s missing when we don’t see it. It is true that it’s not always possible to be fair. Sometime it’s necessary to be just. But in this case, there are people who have done far less than what Mrs. Clinton has already been shown to have done and who have been punished for it. Why should they have to pay a price if she does not? The response that life is not fair does not entirely satisfy.

In 2009, Kristian Saucier, a Navy machinist, took six photos labeled “confidential/restricted” of the nuclear submarine USS Alexandria’s classified propulsion system. Saucier was sentenced to one year in prison and six months of home confinement following his release, and to perform 100 hours of community service.

In 2015, Bryan H. Nishimura, a naval reservist deployed in Afghanistan in 2007 and 2008, pleaded guilty to unauthorized removal and retention of classified materials. There was no evidence, however, that Nishimura intended to distribute the classified information to unauthorized personnel. Nishimura pleaded guilty and was sentenced to two years of probation, assessed a $7,500 fine, and ordered to surrender any his security clearance.

And Gen. David Petraeus, hero of the Iraq War, gave classified material to another person who had a security clearance but no “need to know.” Gen. Petraeus was sentenced to two years’ probation and ordered to pay a $100,000 fine.

3) Danger lurks in curtailing the investigation.

Who knows what evils the Clinton Foundation engaged in? The answer is: Many people know — the many people who have been investigating it. They know things. And it is almost inconceivable that there will be no leaks. Those leaks would embarrass Donald Trump for letting Mrs. Clinton escape, even as they would embarrass Mrs. Clinton — always assuming it’s possible to embarrass a Clinton.

One can argue that continuing to investigate and perhaps prosecute Mrs. Clinton would continue to divide the nation, though we should note that it appears to be the hard-core left that is fomenting the divisive activity. Even so, one can argue that trying to heal that divide is more important than strictly observing the rule of law. Perhaps. People will differ.

What is more difficult to differ on, however, is how people like Nishimura and Saucier, and probably dozens like them, should be treated if Mrs. Clinton et al. are allowed to escape investigation, and perhaps prosecution and punishment.

If Mr. Trump decides to stop the investigation of the Clintons, he should also pardon all people currently in situations similar to those of Nishimura and Saucier. Such a pardon would be both fair and supportive of the rule of law because it would tend to equalize the small fry and the kingpins.

In addition, such pardons, especially if there were lots of them, would make apparent the venality of Mrs. Clinton and make the case for her guilt, but without the trauma of another Watergate-like circus. Mrs. Clinton, though free to spend time with her loving husband, would appear in the public’s mind to be guilty, yet would have no way of being exonerated.

That’s not a perfect outcome. But it’s not bad either.

Daniel Oliver, chairman of the board of the Education and Research Institute and senior director of the White House Writers Group, previously served as chairman of the Federal Trade Commission under…