To paraphrase Nixon, when Clinton hides emails, it is not illegal: Neil Macdonald

Hillary Clinton, the Democratic Party nominee for the U.S. presidency, and others at her rarefied level are simply not equal before the law. Charging Clinton over her use of private emails would buck American practice.

Charging high-level public officials would have consequences that are just too serious

U.S. Democratic presidential nominee Hillary Clinton speaks at a campaign rally in Daytona Beach, Fla., on Oct. 29. The FBI has renewed an investigation into her emails. (Brian Snyder/Reuters)

A Republican congressman named Ken Buck, refreshing the tree of liberty with his patriotic blood, stood up for due process last week.

"Lady Justice doesn't see black or white," Buck shouted in Loveland, Ohio. "She doesn't see male or female. She doesn't see rich or poor. But soon, Lady Justice will see Hillary Clinton."

Black and low-income Americans would likely have another view. On the face of it, Buck's remark was unhinged from reality.

But Representative Buck was vocalizing something Americans want to believe: the founding myth that unlike authoritarian states, or the more corrupt, classist nations of the Old World, the United States holds all equal before the law.

And, as the Bush-era attorney general Michael Mukasey argues persuasively in the Wall Street Journal this week, storing U.S. State Department emails on a private server and exposing them to (potential) hacking, as Clinton has apologized for doing, is both a misdemeanour and a felony under various statutes.

"Members of the military have been imprisoned and dishonourably discharged for mishandling far less information," Mukasey wrote, expressing contempt for the decision of FBI director James Comey not to charge Clinton.

Republican presidential nominee Donald Trump speaks during a campaign event in Phoenix on Oct. 29. Trump flatly calls Clinton a criminal, a term normally reserved for someone who has been convicted of a crime. (Carlo Allegri/Reuters)

Mukasey is a sophisticated jurist, and he's right. There's a reason governments impose strict protocols on the handling of sensitive information, and not seeking to harm the nation's security, as President Obama pleaded in excusing Clinton's behaviour, is no excuse.

The fact that Mukasey fails to accommodate, though, is that Hillary Clinton is not a member of the military or an ordinary civil servant.

She is in fact not ordinary in any sense. She's her party's nominee for president in a binary political system, one of two people Americans have the choice of selecting next week to lead their nation.

And people who live at that rarefied level are quite simply not equal before the law, despite the fine words on the state seal of Nebraska: "Equality before the law."

This is not something Americans like to think about, but think about it a moment.

Bill Clinton and the intern

Bill Clinton almost certainly perjured himself under oath when questioned about Oval Office sex with a White House intern. George W. Bush covertly ordered illegal wiretaps after the 9/11 attacks. He explicitly permitted torture, and the CIA destroyed the evidence. Officials in Dick Cheney's office, seeking revenge against a prominent critic of the decision to invade Iraq, leaked classified information about the critic's wife to a New York Times reporter.

No one was charged for any of that. (Well, that's not quite true. In the case of the New York Times leak, which revealed the identity of a covert CIA operative, prosecutors were handed a patsy named Scooter Libby, whose prison sentence was immediately commuted by Bush.)

A woman chants, 'Lock her up' in reference to Hillary Clinton at a Donald Trump campaign rally in Miami on Sept. 16. (Mike Segar/Reuters)

Richard Nixon, who approved law-breaking that sent his aides to prison, was pre-emptively pardoned by his successor, just to ensure prosecutors didn't get any foolish ideas.

The reason for all this impunity is simple: once people rise past a certain level, the consequences to the nation, and even the world, of charging them with a crime grossly outweigh any banalities about rule of law.

It's the same in any democracy. When, in 1996, then prime minister Jean Chrétien lost his temper and grabbed a protester by the throat, he faced none of the costly consequences that would befall an ordinary mortal who chooses to answer speech with physical violence.

In fact, the RCMP officers flanking Chrétien reacted by jumping on the protester, rather than his manhandler. The media obediently fell into line, treating it as a national joke, talking about Chretien administering a "Shawinigan handshake."

But back to the Americans.

As Nixon told interviewer David Frost, "When the president does it, that means it is not illegal." 
This image released by IFC Films shows Anthony Weiner in a scene from the documentary Weiner. The FBI is investigating some Hillary Clinton emails that turned up in an investigation of Weiner, whose estranged wife, Huma Abedin, is a longtime Clinton aide. (Associated Press)

Generally, such matters can be kept out of sight without any unseemly public fuss. That's the reason for the executive privilege.

In fact, as Mukasey pointed out in his op-ed, the FBI found several emails written under a pseudonym to then-secretary Clinton by Obama himself.

Those emails have been suppressed by the White House, on the legally bulletproof grounds of executive privilege. (With good reason, says Mukasey: "If Mrs. Clinton was at criminal risk for communicating on her nonsecure system, so was he.")

Police should be powerless

Once executive privilege or national security is claimed, police and prosecutors are powerless, which is as it should be.

Because, as Mr. Spock would argue, the needs of the many outweigh the needs of the few, or, conversely, the welfare of the many outweighs the guilt of the few.

Charge a head of state or torpedo a presidential candidate's campaign and democracy totters, with all the attendant results. Markets can take damage, foreign governments immediately take advantage, institutions falter.

Hillary Clinton speaks with senior aide Huma Abedin aboard her campaign plane at Westchester County Airport in White Plains, N.Y., on Oct. 28. (Andrew Harnik/Associated Press)

Which brings us to Comey, the mulish FBI director.

Having been kicked around by his fellow Republicans for closing the investigation into Clinton's emails last summer, Comey has had to endure Donald Trump's public ridicule ever since. (Comey has said he has been a Republican for most of his adult life, though he let his registration lapse after 2012.)

Trump flatly calls Clinton a criminal, a term normally reserved for someone who has been convicted of a crime.

So, when investigators in a separate case found tens of thousands of emails on the computer of the husband of Clinton's chief aide, Comey rushed to assure Congress his agents were on the case again, even before they had had a chance to read and assess the emails. 
FBI director James Comey testifies on Capitol Hill in Washington on Sept. 27. Comey rushed to assure Congress his agents were on the case of Clinton's emails. (Pablo Martinez Monsivais/Associated Press)

In doing that, Comey effectively decided the needs of the few — including James Comey — outweigh the needs of the many, and dealt the Democratic nominee a severe blow with the election a week and a half away.

The fair thing to do would be to simultaneously announce the FBI has opened an investigation into Trump for fraud and sexual harassment, which would hardly be a stretch, given his business dealings and complaints from multiple women.

But it would be just as bad for democracy.

Hillary Clinton addresses email controversy

5 years ago
FBI is investigating whether there is classified information in new emails that have emerged in its probe of Clinton's private server 3:44


  • This story has been updated to provide more information about James Comey's political affiliation.
    Nov 01, 2016 2:02 PM ET


Neil Macdonald is a former foreign correspondent and columnist for CBC News who has also worked in newspapers. He speaks English and French fluently, as well as some Arabic.


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