By John Daniel Davidson
Wednesday, July 06, 2016
The FBI announcement Tuesday was not a surprise. It was
always unlikely that Hillary Clinton would face a federal indictment for using
a private email server during her tenure as secretary of State, no matter what
the FBI’s investigation revealed.
The surprise was that FBI Director James Comey, in a
prepared statement, laid out in detail all the ways Clinton broke the
law—transmitting and compromising classified information, destroying state
records, failing to turn over “several thousand” work-related emails, some of
which contained classified material. He then concluded that no “reasonable
prosecutor” would bring charges against Clinton in such a case.
If you’re wondering why Americans are losing confidence
in our political system, this is why. Our political elites can’t even be
bothered to conceal the appearance of corruption or their sense of entitlement.
The FBI announcement came just days after Bill Clinton
met privately aboard a private plane with U.S. Attorney General Loretta Lynch.
But don’t worry, Lynch said she didn’t discuss the FBI investigation with her
old friend Bill, who in 1999 appointed her U.S. attorney for the Eastern District
of New York. Also, don’t worry about reports that Hillary is open to retaining
Lynch as her attorney general. That has nothing to do with how the FBI has
handled this investigation, trust them.
Institutional
Failure Unleashed A Wave Of Populism
The populist wave that elevated Donald Trump and Sen.
Bernie Sanders during the primaries has been pushed along by a growing sense
that our elites do what they want and our institutions are unable or unwilling
to check them. Institutional failure has perhaps played a greater role in this
than the behavior of the elites themselves, who we generally don’t expect to
behave well of their own accord. That’s why we have the FBI and the DOJ, and
especially the Supreme Court. Americans increasingly feel that these institutions
have failed, that they exist now primarily to serve the interests of their
political masters and the whims of the administrative state.
As Ilya Shapiro noted here back in May, Chief Justice
John Roberts did much to shatter the confidence of conservatives back in 2012
and usher in the era of Trump with his majority opinion in NFIB v. Sebelius. By recognizing that Obamacare was
unconstitutional, but rewriting the individual mandate as a “tax” to save the
law in the name of judicial restraint, Roberts undermined the credibility not
only of the Supreme Court but of public institutions across the board. If the
Supreme Court is willing to tie itself in knots to uphold an unconstitutional
and unpopular law giving sweeping new powers to the federal government, then
what good is the court?
Now Comey has done more or less the same thing. By
detailing how Clinton broke the law, but concluding that no charges should be
brought against her, he tacitly admitted political pressures influenced the
FBI’s decision and perhaps undermined the rule of law. Comey even suggested the
law might be applied differently to someone less important than Clinton. “To be
clear, this is not to suggest that in similar circumstances, a person who
engaged in this activity would face no consequences,” he said. “To the
contrary, those individuals are often subject to security or administrative
sanctions. But that is not what we are deciding now.”
No, what Comey was deciding was much more important. He
was giving Lynch, whose future as attorney general depends on the good graces
of a Clinton administration, cover for not indicting Clinton.
So Much For the
Rule of Law
Regardless of whether Trump wins the White House or
Sanders-style socialism comes to dominate the Democratic Party, Americans’
sense that their institutions are corrupt and corruptible will continue to feed
the populist fervor that’s been so disruptive this election cycle.
There is of course some irony in this, since populist
fervor tends to weaken the rule of law in favor of rule by demagogue. But a
constitutional republic relies on the rule of law and therefore requires that
some parts of the government function outside politics, or as far removed from
politics as possible. The Supreme Court was specifically designed to be immune
from political pressures. The highest court in the land is supposed to be
concerned with the Constitution alone, not particular policy outcomes or the
changing winds of domestic politics.
That’s why the Founders insisted on lifetime appointments
to the Supreme Court. “Periodical appointments, however regulated, or by
whomsoever made, would, in some way or other, be fatal to their necessary
independence,” wrote Alexander Hamilton in Federalist
No. 78. If the justices relied on the executive or legislative branches,
“there would be an unwillingness to hazard the displeasure of either. If they
were elected by the people, “there would be too great a disposition to consult
popularity.”
Likewise, the FBI and DOJ are also supposed to be
insulated from politics, as are the agencies charged with national security and
foreign policy. To function properly and retain the confidence of the people,
these offices must execute their duties, as far as possible, above the
political fray and beyond the influence of the elites.
So much for all that.
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