Not Guilty

FBI Director James Comey has just issued a letter to Congressional leaders that “In connection with an unrelated case the FBI has learned of the existence of emails that appear to be pertinent” to the previously closed FBI investigation of Hillary Clinton’s private email server.  Comey doesn’t yet know whether these new emails are “significant” or how long it will take to fold new investigative work on these new emails into the FBI’s previous work.  He released the letter as a “supplement” to his previously testimony about the email server to Congress. 

I’m not going to speculate as to what’s in the new emails or why these emails hadn’t been discovered prior to the time the FBI closed its case on the matter last summer.  And nobody else should either.  

But I have to say that this matter is annoying, and not just because I support Hillary Clinton.  The key issue is whether Clinton intended to violate a statute aimed at preventing people from stealing government information and intentionally delivering it to people who shouldn’t have it.  I’ve been a lawyer for over 35 years, and, having heard the arguments, I believe the FBI Director was right the first time when he concluded that “no reasonable prosecutor” would bring a case against Clinton with the facts the FBI had discovered.   Even if Clinton’s behavior was “extremely careless,” extreme carelessness is not a crime. 

There’s a bigger issue here, and it applies as much to Donald Trump as it does to Hillary Clinton.  The partisans on both sides of the aisle are trying to apply a lawyerly rule of strategy to this election that makes sense in the courtroom but not in the arena of public opinion.  One of the first things they teach you in law school is that it’s often better to try to win your case on procedural foot faults where the rules are clear—your opponent filed late, filed in the wrong court, didn’t use the correct size paper in its brief or pleadings, for example—than it is to venture into a trial on the merits where a judge may have the leeway to rule against you.  A win, after all, is a win. 

In this election, it seems that both sides want the other side to be “disqualified,” either because of the improper handling of governmental documents in the case of Mrs. Clinton or because of the improper handling of female body parts or fraudulent business practices on the part of Mr. Trump.  Rather than taking their cases to the voters, both sides seem to want to win on anything but the merits of the policies they support. 

That is no way to run a democracy.  In a democratic election politicians, stand before their peers—the citizens of this country—who will render judgment, not just on the policies they espouse, but on them as people.  Why should anyone, in this democracy, want lawyers, prosecutors or judges to play the role democracy assigns to the people? 

The law that both sides insist should be followed to the letter is but the embodiment of the community’s judgment about what should or should not be done, and about how transgressions of that judgment ought to be addressed.  In our country, due process requires the community to set out specifically what it will tolerate and what it won’t.  We simply do not punish people for things that they do that may enrage us unless we have first given them clear notice of the particular things that will lead to punishment in the form of a statute.  And we don’t punish anyone unless and until the community, usually in the form of a jury, decides beyond a reasonable doubt, that each element of the statute leading to culpability has been violated. 

We use juries to make decisions about culpability because it is impractical to have the community at large sitting in judgment on every case.   Because we want to avoid arbitrary judgments from small groups of people, we typically require either unanimity or near unanimity before we allow the state to deprive a person of life, liberty or property. 

We require juries to be impartial, and we take great care to insure that jurors learn about the people and the things that they have done anew.  In appropriate cases, we even move court proceedings  to distant locations where the people who make up the jury pool are unlikely to know anything beforehand about the people they might be judging. 

We are in the last two weeks of a national election.  It is absurd to think that either of these two candidates could get a fair trial in front of an impartial jury anywhere in the country.  Both of these two candidates are extremely well known, and it’s simply implausible that anyone in this country hasn’t formed an opinion about their characters or the things they have been accused of doing.  Despite any instructions a judge might give to a jury about how to resolve the fates of these two people, there isn’t any reason to think that a jury wouldn’t go beyond the law, exactly the way that the Supreme Court went beyond the law in Bush v. Gore.  It’s hard to imagine that a jury—12 citizens--wouldn’t be influenced by the realization that it alone has the power to decide who, as a practical matter, will be president.  

That is why, despite the reasonable assertion that both of these two people ought to be treated just like anyone else accused of potentially criminal behavior, it is unreasonable to think that either of these two people could possibly be treated like anyone else.  The implications for the health of American democracy of letting the FBI, a prosecutor, the Justice Department, a judge or a 12-person jury decide who will be president require that Clinton and Trump be treated differently. 

The best way to deal with Secretary Clinton and Mr. Trump is simply to let the people at large serve as the jury.  With respect to Secretary Clinton, the facts of her case have been extensively litigated in the court of public opinion and before Congress.  By now, everyone knows what she did and is in a position to decide for themselves whether what she did makes it unwise to trust her with national security.  If it does, vote against her. 

Mr. Trump’s case, too, has also been heavily litigated in the court of public opinion.  Everyone now has extensive evidence about Mr. Trump’s attitude and actions with respect to women.  Everyone knows that multiple contractors have claimed that Mr. Trump failed to pay them in accordance with the terms of their contracts.  And everyone also knows that Mr Trump's "university" has been accused of defrauding students.  If you believe that Mr. Trump is too unsavory a character to be the President of the United States, vote against him.  

I am well aware that the analogy I am making to trial by jury is imperfect.  But, what’s really at stake here isn’t whether either of these people receives a relatively mild sanction.  Given what has happened to people like David Petraeus or Sandy Berger  it’s not likely that anyone would  lock Clinton up. Even if applicable statutes of limitation did not protect Trump from prosecution, sexual battery is a minor crime that’s not ordinarily prosecuted unless the touching was egregious, most of the other things he's been accused of are the stuff of civil lawsuits.  What's at stake here is which one of these people (and the factions that support them) should govern.  And that is a call we all should make through a fair democratic process.  It should not be left to prosecutors, lawyers or 12 angry men.