Are some people more equal than others?
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(E minus 50) – In honor of Constitution Day (Sept. 17), it’s timely to reflect on the document that established the basic rules for America’s system of government. Taking “equality before the law” as the focus, we’ll compare theory (how the Constitution was meant to work) with practice (how it’s actually working). There seems to be a wide gap between theory and practice, as will be discussed, and the implications are disturbing.
A. Theory - The Constitution doesn’t say “everyone is equal before the law” in so many words, but such a principle can be inferred from its text (as amended and interpreted over the years). Consider the following:
•Declaration of Independence (1776): “We hold these Truths to be self-evident, that all Men are created equal . . .” – Although the Constitution that was drafted a decade later fell far short of providing for equality of all people, notably by tolerating continuation of slavery, this assertion provides evidence re the aspirations of the nation’s founders.
•Constitution, Amendment V (1791): “No person . . . shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law . . .” – It would seem fair to conclude that “due process of law” was meant to have the same meaning for all defendants, although this provision left open the possibility that some people would be spared from prosecution for alleged crimes on the basis of political considerations. Also, the 5th Amendment only applied to federal criminal proceedings, i.e., did not govern actions brought by state authorities.
•Constitution, Amendment XIV (1868): “[No state shall] deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” - After a bloody Civil War, the Constitution was amended (13th-15th Amendments) to abolish slavery, establish rights for freed slaves and others against action by governmental authorities, and provide for federal enforcement if necessary. The phrase “equal protection of the laws” comes pretty close to “equality before the law,” although many questions would arise in its application.
•Plessy v. Ferguson, SCt (1896), opinion of Justice John Harlan: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.” – Here’s a forthright statement on our chosen subject, but Justice Harlan was writing in dissent. The majority held that school segregation was permissible because the schools for black children could be “separate but equal.”
•Brown v. Board of Education, SCt (1964), opinion of the court (per Chief Justice Earl Warren): “We conclude that, in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” – As this decision overturned Plessy v. Ferguson, Justice Harlan’s statements about equality were seemingly vindicated. However, the opinion does not discuss this point.
B. Practice – Fast forwarding to the present, can it truly be said – as Justice Harlan asserted - that “the humblest is the peer of the most powerful”? Perhaps this is true in some respects, but it’s not descriptive of how the US judicial system generally works. To the contrary, the powerful and well-connected are often allowed to get away with major offenses while defendants who are out of favor may be treated far more harshly.
We previously reported on three cases in which serious misconduct by officials in the current administration has been brushed under the rug, and efforts by Congress to look into the matter strongly opposed. Congressional oversight is often ineffective, 4/18/16. Let’s expand the sample to include a notorious controversy about e-mails.
Recent developments have not changed the outlook in any of these cases, which is that the conduct in question won’t lead to criminal charges or other adverse legal consequences for the principals or those who assisted them. Other people with related or analogous legal problems have not fared as well.
#Fast and Furious (government-permitted gun running operation that started in the fall of 2009) – This initiative had deadly consequences, and the administration closed it down – high ranking Department of Justice officials then seemed to develop amnesia about authorizing it in the first place. Some initial statements about the matter were retracted after being proven factually insupportable. Congressional requests for documents were not complied with, and the president wound up asserting executive privilege (which suggested the White House might have been involved in and/or supportive of F&F).
The House of Representatives voted Holder in contempt for his role in blocking the investigation, and ensuing litigation established that some of the documents being requested would have to be produced. Holder was not held in judicial contempt, however, which would have exposed him to potential criminal sanctions. Judge declines to hold Holder in contempt, Josh Gerstein, politico.com, 10/6/14.
Over 20,000 pages of e-mails and documents about F&F have since been produced, which reportedly reveal determined efforts by top officials to frustrate the congressional investigation. The scandal in Washington no one is talking about, Paul Sperry, New York Post, 5/21/16.
“The documents reveal how senior Justice Department officials — including Attorney General Holder — intensely followed and managed an effort to carefully limit and obstruct the information produced to Congress,” [Rep. Jason Chaffetz] asserted. They also indict Holder deputy Lanny Breuer, an old Clinton hand, who had to step down in 2013 after falsely denying authorizing Fast and Furious.
Just a guess, but we doubt any of the officials concerned will ever face criminal charges for their actions – and it certainly won’t happen under the current administration.
#Benghazi (terrorist attack on 9/11/12, which resulted in the death of the US ambassador to Libya and three other Americans) - This event occurred a week after the Democratic National Convention at which improvement in the international situation since 2009 had been triumphantly acclaimed, and it was seen as a major embarrassment. Instead of acknowledging that there had been had a series of coordinated attacks by heavily armed fighters, which had succeeded in overwhelming US defenders in a 7-hour battle, a series of statements were made by high-ranking officials (e.g., Susan Rice) to the effect that a spontaneous protest against an obscure anti-Islam video had morphed into an armed attack.
Secretary of State Hillary Clinton requested an independent review board to investigate the attack, and in due course (after the elections) the board reported that mistakes had been made. Four mid-level officials were faulted for inadequate security at the US facilities in Benghazi, although no one was fired as a result. The board did not interview Clinton, even though she had spoken with the president by phone on the night of the attack, nor look into the story about the video.
Several congressional committees held hearings on this matter, and some disturbing information has been unearthed as a result – despite repeated efforts of Democratic members to impede or discredit the investigations. The most recent review by a special House committee was particularly fruitful. Trey Gowdy’s Benghazi Committee releases full report on attacks, Alex Pappas, dailycaller.com, 6/28/16.
In August 2012 — roughly a month before the Benghazi attacks — security on the ground worsened significantly. Ambassador Stevens initially planned to travel to Benghazi in early August, but cancelled the trip “primarily for Ramadan/security reasons.” *** Despite President Obama and Secretary of Defense Leon Panetta’s clear orders to deploy military assets [during the attack], nothing was sent to Benghazi, and nothing was en route to Libya at the time the last two Americans were killed almost 8 hours after the attacks began. *** A Fleet Antiterrorism Security Team (FAST) sat on a plane in Rota, Spain, for three hours, and changed in and out of their uniforms four times. *** Five of the 10 action items from [a] 7:30 PM White House meeting [on the night of the attack] referenced the [anti-Islam] video, but no direct link or solid evidence existed connecting the attacks in Benghazi and the video at the time the meeting took place. The State Department senior officials at the meeting had access to eyewitness accounts to the attack in real time. *** There was no mention of the video from the agents on the ground. Greg Hicks—one of the last people to talk to Chris Stevens before he died—said there was virtually no discussion about the video in Libya leading up to the attacks. *** According to Susan Rice, both Ben Rhodes and David Plouffe prepared her for her appearances on the Sunday morning talk shows following the attacks. Nobody from the FBI, Department of Defense, or CIA participated in her prep call. *** Susan Rice’s comments on the Sunday talk shows were met with shock and disbelief by State Department employees in Washington. The Senior Libya Desk Officer, Bureau of Near Eastern Affairs, State Department, wrote: “I think Rice was off the reservation on this one.” [Another official] responded: “Off the reservation on five networks!” The Senior Advisor for Strategic Communications, Bureau of Near East Affairs, State Department, wrote: “WH [White House] very worried about the politics. This was all their doing.”
Ultimately, will anyone be held accountable for dereliction of duty before or during the attack or for attempting to mislead the public as to what had happened? That seems quite unlikely at this point.
Consider, for example, the wrongful death lawsuit that parents of two of the Americans killed in the Benghazi attack (Sean Smith and Tyrone Woods) have filed against Hillary Clinton. After failing to respond until the court entered a default judgment against his client, Clinton’s attorney complained that she had been improperly served and unleashed a scathing blast against the plaintiffs’ attorney as well. Hillary is fighting back against default judgment, patriottribune.com, 9/16/16.
In contrast, the maker of the anti-Islam video was swiftly dealt with. Arrested in late September, Nakoula Basseley Nakoula (aka Mark Basseley Youssef) was convicted and sentenced to a year in prison plus four years of probation. His crime was not making the video, which was presumably an exercise of his right to free speech, but rather violating the conditions of his parole for an unrelated offense. Man behind anti-Islam video gets prison term, New York Times, 11/7/12.
Mr. Nakoula’s treatment was technically justifiable, no doubt, but the link to his production of the video seems apparent. As though to leave no doubt on this score, the prosecutor discussed the video at the sentencing hearing and complained about how cast members had supposedly been tricked into participating.
Although Mr. Dugdale did not pursue the probation violation charges that were directly related to “Innocence of Muslims,” he spoke about Mr. Nakoula’s film project — and the deceitful manner in which he carried it out — as part of his sentencing argument.
#IRS targeting (endless delays and requests for additional information in processing tax exemption requests from conservative groups) – After this problem arose, the president gave a televised address in which he characterized the IRS conduct as “inexcusable,” announced the acting head of the IRS had resigned, and promised to “institute new leadership that can help restore confidence going forward.” The president’s speech seemed like a good start, as we duly reported at the time. Kabuki theater in DC (item C), 5/20/13.
After that, things went downhill fast. The ringleader of the targeting program, Lois Lerner, and others tried to blame a rogue group of IRS employees in Cincinnati. When that didn’t work, Lerner informed a congressional committee that she had done nothing wrong and then took the 5th as to all questions asked. Crashed computers – missing e-mails – endless delays by the IRS in complying with document requests – Lerner retired with a full pension – empty promises of John Koskinen, the new IRS commissioner – little evidence that the targeting of conservative groups has actually stopped.
House conservatives are itching to make a statement by impeaching Koskinen, but our sense is that cooler heads will prevail and he’ll depart without incident when the new administration takes over in January.
#Handling of classified materials – There has been no end of coverage about Hillary Clinton’s e-mail woes, which arose because she chose to arrange for a private server to handle her official and other e-mail communications while she was heading the State Department. The problem was compounded by the fact that Clinton didn’t provide any e-mails to the government until the existence of the private server became public knowledge, that she chose to have tens of thousands of “personal” e-mails deleted, and that her explanations about these matters were repeatedly disproved and revised.
The Federal Bureau of Investigation initiated an investigation, and it seemed possible that criminal charges would be recommended. Clinton’s emails: a criminal charge is justified, [former federal judge and Attorney General] Michael Mukasey, Wall Street Journal, 1/21/16.
. . . from her direction that classification rules be disregarded, to the presence on her personal email server of information at the highest level of classification, to her repeated falsehoods of a sort that juries are told every day may be treated as evidence of guilty knowledge—it is nearly impossible to draw any conclusion other than that she knew enough to support a conviction at the least for mishandling classified information.
FBI Director James Comey eventually pronounced (7/5/16), however, that although Clinton’s practices had been “extremely careless” they did not merit a criminal indictment. There was also no word of charges against any of Clinton’s subordinates or assistants. The handling of this matter was unusual in that the person who would normally have taken responsibility for a decision not to prosecute in an investigation of this importance – Attorney General Loretta Lynch – seemed to be lying low.
The statutory provisions did not require a showing of intent for mishandling of classified information, so why did Comey stress that intent had not been established? There was no basis for dismissing the mistakes as trivial given hundreds (perhaps thousands) of classified e-mails in the mix including some regarded as extremely sensitive (above “top secret”). Having rejecting the idea of charging Clinton, why did the FBI subsequently release detailed notes about its investigation (this would clearly have been improper if a grand jury had decided not to charge Clinton)?
One eminent legal commentator, Andrew Napalitano, concluded that there was only one rational explanation for what had occurred. Former judge: James Comey was determined to exonerate Hillary Clinton and shred the rule of law, Lloyd Billingsley, directorblue.blogspot.com, 9/13/16.
[Thus], “the FBI did not ask Clinton aggressive follow-up questions. Her interrogators just blithely accepted her answers. They failed to present her with documents she had signed that would have contradicted what she was telling them – particularly, an oath she signed on her first day in office promising to recognize state secrets when she came upon them and to keep them in secure venues. And agents violated Department of Justice policy by not recording her interrogation when her lawyers told them she would not answer questions if her answers were recorded.”
Other violators of the laws for handling of classified information have not been dealt with so leniently. Compare what happened, for example, to General David Petraeus (the commander who led the ultimately successful “surge” in Iraq and went on to serve as director of the Central Intelligence Agency after retiring from the Army).
During his time at the CIA, Petraeus was working with a biographer named Paula Broadwell and they were also having an affair. He gave her some confidential documents to read as background for the book project, which was clearly improper (no “need to know”) even though she had a Top Secret clearance. These facts came to light after Broadwell sent threatening e-mails to another woman and the latter complained to the authorities. Confronted by FBI agents who were initially assigned to look into the complaint of the other woman and had learned about the affair plus the fact that Broadwell had classified materials in her possession, Petraeus made things worse for himself by denying that he had provided the classified materials.
After protracted legal proceedings, Petraeus pleaded guilty to a misdemeanor. He got off with two years of probation and a $100,000 fine. Petraeus pleads guilty to mishandling of classified materials, will face probation, Adam Goldman, Washington Post, 4/23/15.
The punishment for Petraeus was arguably just, but the potential risks to national security in his case were far smaller than those created by the operation of Clinton’s private e-mail server and the many people (probably including hackers) who had access to the classified materials thereon.
Political correctness and other factors such as Supreme Court rulings have already destroyed our trust in government and have allowed our government to prefer certain groups to others for political reasons. – SAFE director
Very good info and much appreciated. – Retired finance manager