The last time I flew, no one suggested that we hop off the plane, trot across the runway and socialize with the passengers on nearby planes. In fact the pilot made it clear we weren’t free to move around the cabin, much less the runway. But a few years back, Bill Clinton, former President and his entourage made their way across a runway to the plane where Loretta Lynch, Attorney General had just taxied in. Never mind that at that very moment in time that same Attorney General was considering the matter of Bill’s wife and former First Lady, Democratic nominee for President of the United States, Hillary Clinton, and whether her use of her private email server to send classified materials was a violation of the Espionage Act. But no worries, Bill and Loretta, they just talked about their grandchildren…and they didn’t inhale.
This incident would have been all but forgotten but for the recent revelations by Lisa Page, the attorney whose job it is to advise the FBI about whether charges are appropriate in their investigations. Just like they explain in the intro to the television show Law and Order… in the criminal justice system, the people are represented by two separate but yet equally important groups. The FBI, who investigate the crime and the Attorney General’s office, who prosecutes the offenders. Ultimately, the decision rests with the prosecutor, in this case the Attorney General, as to whether to charge a Defendant.
Lisa Page's transcribed testimony suggests Loretta Lynch misrepresented to Congress her office’s involvement in the decision about what charges, if any, were appropriate for Hillary Clinton. Loretta Lynch essentially told Congress that she washed her hands of the matter, testifying that she deferred the decision about whether to charge Hillary Clinton to Director of the FBI James Comey. Congress was not convinced and questioned Lisa Page about whether she would “blow over” the idea of gross negligence on the part of Hillary Clinton. Lisa Page testified that the FBI she did not "blow over gross negligence"(a violation of 18 USC Section 793), that they had multiple discussions with the Justice Dept. about charging "gross negligence", but that "the Justice Department put a stop to that". Page's testimony that the Attorney General’s office put the brakes on any consideration of charging Hillary Clinton with gross negligence seems to suggest that Loretta Lynch lied about her agency's involvement in the charging decision, leaving her open to suggestions that her meeting with Bill Clinton had something to do with the case. As if we didn’t already know.
A few days after that tarmac meeting, then FBI Director James Comey defied protocol by calling a press conference and making the announcement that Clinton's actions constituted "extreme carelessness" but did not rise to the level of “gross negligence” under the statute and therefore no prosecution would be brought. For his efforts, Comey was accused of insubordination by the Inspector General. Seems like a bum rap given that Lynch testified she delegated that authority to Comey.
As a practical matter, James Comey’s determination on charging may be the legally correct standard given that the Supreme Court has interpreted the statute at issue as requiring some general intent to harm the United States. Other’s prosecuted under the same statute include The Rosenberg’s (for selling nuclear secrets to the Soviet Union), and Chelsea Manning and Edward Snowden (for providing classified material to Wikileaks). Clearly, those individuals were working against the interests of the United States, rather than simply negligently disseminating classified documents.
Clarence Thomas famously said, “it’s a national disgrace …a high-tech lynching for uppity blacks who in anyway deign to think for themselves…and it is a message that unless you kowtow to an old order, this will happen to you”.
For Loretta Lynch, her meeting on the tarmac was a national disgrace. Her failure to assume responsibility for the very decisions that she is beholden to make suggests complicity, and that is simply kowtowing to the old order of Clinton politics.
