The recent decision by FBI Director James B. Comey recommending against charging Sec. Hillary Clinton for violations of the law while she served as Secretary of State under President Barak Obama, calls into question the rule of law in this country.   Our country was founded on the concept of rule of law.  Our mother country, Great Britain, had come a long way by 1776 in the development of the rule of law. In 1215, King John agreed to the Magna Carta with a group of Barons which limited the powers of the king.  While there was much back and forth in the years that followed, the agreement established the notion of the rule of law, rather than the rule of man.  When later kings attempted to rule without Parliament, the conflict led to the English Civil War and ultimately resulted in the Glorious Revolution of 1689 and further limitations on the authority of the king.  The colonists in the American colonies understood these limits and argued during the War for Independence that Parliamentary legislation that adversely affected the colonies was not implemented properly.  Their claim of taxation without representation was first a claim that certain taxes could only be levied by colonial legislatures and was later a claim that the colonists were not represented in Parliament.  Regardless of the details, the issue, in the mind of the presumptive Americans, was that Parliament had violated the limits placed on its power.  In short, our founding was at least in part a battle over the rule of law.

In order to preserve the rule of law, the United States has always asserted that no man, even the president, is above the law.   The first president, George Washington, refused to be referred to in terms that smacked of royalty.  He allowed only “Mr. President” to signify the difference between him and a king.  In addition, he would not go into a meeting of Congress without invitation, because he respected the limitations placed upon his office.  These are only the first manifestations of the rule of law.  Over the years, the country has taken the notion equally seriously.  Three presidents have been impeached in pursuit of maintaining the delicate balance between different branches of government and the legal limits placed upon the chief executive.  Andrew Johnson was impeached (charged by the House) for violation of a law.  He was not removed.  A House committee passed three charges against Richard Nixon involving abuse of power, defiance of a subpoena, and obstruction of justice.  He resigned before the whole House could vote on them and some historians do not consider him impeached as a result, but the process worked.   Finally, William Clinton was impeached on very similar grounds.  The American system was designed to keep those in power accountable to the law.  When Nixon resigned, Americans breathed a sigh of relief and historians since then have used the case as the quintessential example of maintaining the rule of law.  Nixon and his predecessor, Lyndon Johnson, have been dubbed the Imperial Presidents because of their use of power in engaging the Vietnam War and abusing their powers as president in actions like the Watergate scandal.  For most of my career, I have taught about these presidencies as the high point of presidential power and I have watched as news stories compared various presidents to Nixon’s abuse of power.  With the use of power by President Obama and lack of ability of the system to reign in his actions, combined with the strength of the evidentiary argument against Sec. Clinton not resulting in indictment, how can we think the rule of law continues?

The irony in my argument is that Hillary Clinton served on the impeachment investigation team during the Nixon impeachment process.  Dan Calabrese, who served as chief counsel to the House Judiciary Committee during the Nixon investigation, claims that Sec. Clinton, who was hired to assist in the investigation, was fired because of unethical behavior during her appointment.  According to Calabrese, Sec. Clinton lied about her actions related to a supervisor’s direction that she not challenge the House rules at the time, and she removed files from a public viewing room without permission.  I did not know about these allegations prior to researching for this post, but it would be ironic that a person seeking to preserve the rule of law would violate the law in so doing.  Sec. Clinton was later implicated in various scandals that arose during her husband’s administration.  One involved lost documents related to the First Couple’s Whitewater investments, documents that had been under the control of Sec. Clinton’s staff; and the other related to hundreds of FBI files on political opponents that had been improperly requested by White House staff and may have been accessed by the then First Lady.  The uniformity of the abuse of power and the apparent disregard of the rule of law suggests a disturbing pattern.  Regardless of the alleged past indiscretions, the case laid out by James B. Comey was rather clear.  The law requires either intent or gross negligence as Dr. Mark Smith articulated well in his podcast on the Berean’s site.  Surely the evidence is compelling for gross negligence, yet Comey decided not to recommend indictment.  Attorney General Loretta Lynch punted responsibility when it was revealed that she had a private conversation with President Bill Clinton.  So, the responsibility was laid entirely on the FBI director.  He recommends against indictment after laying out the evidence, and the country is left wondering.  What can explain this seeming lack of concern for the rule of law?

Many explanations have been leveled.   Of course, one can accept the FBI Director’s assertion that no prosecutor would bring this case to court and that the previous indictments related to this law were based on intent rather than gross negligence.  Strangely, he suggests there was no obstruction of justice though one of the most documented allegations in this case is the lack of veracity in Sec. Clinton’s public comments related to the case.  In light of the previous and much compared case of Gen. Patraeus, which involved far fewer documents and no criminal intent, it is difficult for me to accept Director Comey’s position.   Dr. Smith makes a compelling case for Comey’s decision being based on a belief that the case would not be successful and, if it were not, the consequences would tarnish the standing of the FBI.  We have seen this type of consideration before in American History.  Chief Justice John Marshall worried that President Thomas Jefferson would ignore the court’s decision in Marbury vs. Madison.  His eventual decision ultimately sided with the Jefferson administration but asserted the power of the court to declare legislation unconstitutional.   That act set the precedent for judicial review and ran counter to Jefferson’s political philosophy.  Jefferson had to accept the decision, however, because he ostensibly won the case.  Marshall won the war, however, after careful consideration of the ramifications of a court case being ignored.  So, this argument carries weight, but it assumes that the case would not be won.  Dr. Smith also asserts that President Obama would not allow prosecution even if Comey did recommend it.  For me, it calls into question Comey’s integrity, but I will discuss that further in a minute.   Charles Krauthammer, in a recent editorial, suggests a theory that Director Comey did not want to be remembered as the man who impacted the course of the 2016 presidential election.  Like Dr. Smith, he suggests that the prospect of potentially losing the case only adds to the rationale for not recommending prosecution.

These are all strong arguments and unfortunately we cannot get into Director Comey’s mind to ascertain what really drove this decision.  Krauthammer believes he has demonstrated enough integrity in his past actions to be given the benefit of the doubt that the decision was not the product of simple political pressure from the Clinton’s or the Obama administration.  Krauthammer is a better student of politics than I, but I cannot seem to shake the nagging doubt I have on this point.  Both the Clintons and President Obama have track records of using political pressure to get what they want.  But assuming Krauthammer is right, what was it that caused the man on whom this significant decision fell, to decide not to prosecute what appears to be a strong case?  I tend to agree with Krauthammer that it has more to do with Comey’s personal legacy than anything else, but I do not know.  What I do know, is that the decision represents a lack of integrity for Director Comey.  His task is clear, and it demands that neither his agency nor himself take precedence over the law.  More importantly, it is a loss for the rule of law.  Regardless of the personal consequences for Director Comey, he should have pursued the law.  Regardless of the anticipated consequences for the FBI, he should have maintained the commission of the executive organization.  One of the FBI’s stated objectives is to “combat public corruption at all levels.”  That should supersede other considerations.  We have had presidential candidates removed from campaigns for mere allegations by the press.  If the case were to derail Sec. Clinton’s campaign, so be it.  Do we not want presidential candidates that are above suspicion?  One cannot argue, if the American people want her they should have her.  The rule of law is above the rule of democracy.  It is certainly above the rule of man in terms of the person who is to serve as president.  That so many Americans are willing to vote for Sec. Clinton in spite of the evidence of her disregard for the rule of law, is an indictment of the American voter.  We will all pay the price for the loss of the rule of law.  What is most amazing to me as a historian, is how quickly we have forgotten its importance.  Her husband was impeached only 18 years ago.  One would think Sec. Clinton would have learned something in the process of watching her husband go through that ordeal.  One would think we would have learned something.