Lords over laws?

In 1776, Thomas Paine wrote in Common Sense: “In America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other” (emphasis added).

Question: What was FBI Director James Comey saying 240 years later, concerning a Hillary Clinton prosecution, when he stated today, “We cannot find a case that would support bringing criminal charges. … [T]his is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences.”

Does that mean one law for Clinton and a different law for others in similar circumstances? Or did Comey mean he couldn’t find a case that would support bringing criminal charges, but a person in a similar position would get into trouble—administrative or security sanctions—but not face jail time or fines?

I’d like to think well of Comey, but it’s hard right now. Prosecutors have discretion, and Comey in making a recommendation had three main options: recommend felony prosecution, recommend misdemeanor prosecution, or make a speech.

Let’s look at the law. How about a felony charge against Clinton for mishandling classified information either intentionally or in a grossly negligent way?

Let’s read 18 U.S.C. §793(f):

“Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—Shall be fined under this title or imprisoned not more than ten years, or both.”

Should Clinton go on trial for that? Some will say yes, and hearing all the testimony in a court of law would certainly be educational. But let’s say Comey doesn’t want to seem vindictive by pushing as hard as he could. How about the moderate position: a misdemeanor charge?

Let’s look at 18 U.S.C. §1924(a):

“Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location, shall be fined under this title or imprisoned for not more than one year, or both.”

Clinton knowingly removed documents and clearly retained them at an unauthorized location. Since she had to pledge not to do such things with classified information, she only had authority to do that if she was above the law—and the United States, as John Adams famously said, has “a government of laws, not men.”

Comey could have recommended a common procedure: drop the stretch charge of a felony and go for a misdemeanor. It would have been a middle-of-the-road stance legally and politically. Instead, he let Clinton off the legal hook entirely—and that makes it look like the fix is in.

“A government of laws, not men.” Not anymore? Should we mark our calendars: July 4, 1776, Independence Day. July 5, 2016, one more tragic loss as the United States slides into government by powerful lords?