Thursday, July 14, 2016
Erwin Chemerinsky Says Clinton Broke No Law
"Hell, I didn't know it was against the law to rob a bank."
I have long maintained that UC Irvine law school dean Erwin Chemerinsky, who writes a weekly column for the Orange County Register and is regarded by some as one of the nation's foremost constitutional scholars, fashions his legal views according to what is the liberal side of the argument. His column in today's OC Register removes all doubt as he opines that Hillary Clinton broke no law with her email server while secretary of state.
"For Clinton to have violated the law, it must be proven that she knew that what she was doing was illegal. As Comey explained, prior prosecutions have been for “clearly intentional and willful mishandling of classified information,” and there is no evidence of this for Clinton."
First, to argue that Clinton had no knowledge that she was acting unlawfully is laughable on its face. She was the secretary of state and a lawyer to boot! She was fully briefed on classification procedures prior to being sworn in. She actually disciplined underlings who violated the same rules. On one occasion, it was revealed that she directed her aides to remove classification markings from a message in order to facilitate its transmission to her. That latter example alone goes to show her intent-as if intent were necessary in the case of 18 USC 973 section f, which only requires "gross negligence". James Comey told Congress in his testimony that Clinton and her aides were "extremely careless" in their handling of classified material. Maybe Chemerinsky would like to explain the difference between the two in legal terms. Had Chemerinsky ever been a prosecutor, he would have known that intent is usually proved in court by circumstantial evidence, you know, things like deleting (thousands) of emails.
And Clinton never lied? Trey Gowdy (R-TN) brought out in his questioning of Comey that Clinton lied in a number of statements, both to the public and to the committee in her own testimony. (That's called perjury, Mr Chemerinsky.) She told Congress that she never sent or received classified information. Comey stated that the investigation revealed that she did.
Any junior Foreign Service officer knows how to handle classified documents. Yet you have a woman who was secretary of state for four years sending and receiving classified documents, some classified even higher than top secret, on her own private server housed in the basement of her home!
Chemerinksy also writes:
"Comey emphasized that there has not been a single instance in which any person ever has been prosecuted for behavior like Clinton’s."
I would suggest that both Comey and Chemerinsky Google the name, Bryan Nishimura. He was prosecuted for unauthorized removal and retention of classified materials-with no malicious intent in 2015. The investigating agency? The FBI. Here is a link to their own website reporting the case.
The decision not to charge Clinton was a political decision. It was left to Comey to make the announcement in order to take the heat off the President and the attorney general. For Chemerinsky to argue that it was based purely on a reading of the law is to turn logic on its head.