- - Tuesday, July 5, 2016


It’s probably true, as a courthouse wisecrack first put it many years ago, that even a mediocre prosecutor can persuade a grand jury to indict a ham sandwich. Loretta Lynch, the nation’s top prosecutor, now has the whole ham in front of her, and by one imaginative reading the FBI has all but dared her to proceed against Hillary Clinton.

James Comey, the director of the FBI, set out Monday a remarkable indictment of the presumed Democratic nominee for president, saying she was “extremely careless” and suggested that this extreme carelessness put the nation’s interests — and perhaps the nation itself — at risk. Only the indictment handed up by Mr. Comey is not a legal one, but a searing moral one, told in Hillary’s own words and deeds. Her extreme carelessness put her communications with her staff and others, dispatched on her private email server, at the mercy of the Russians and the Chinese, who are very good at intercepting other people’s mail.

Hillary and her retinue will interpret this as “all clear.” Mr. Comey, paragon of independent virtue or not, excuses her “extreme carelessness” because she didn’t really mean for her “gross negligence” to do any harm. Perhaps, but the point of a law that makes gross negligence a crime is that a high government official has a special and well-understood legal duty to protect the nation’s secrets.

“The lack of intent to harm our country is irrelevant,” observes Andrew McCarthy, a former assistant U.S. attorney, in National Review Online. “People never intend the bad things that happen due to gross negligence.”

Indeed, if the bad things were intended, it wouldn’t be a matter of negligence. Words, like laws, have meanings. Requiring “intent” is Mr. Comey’s invention; Congress did not put “intent” in the law. He reasons that because Hillary did not intend to harm the United States she should not be prosecuted. The law is thus stood on its ear.

“To be clear,” Mr. Comey told his press conference Monday, “this is not to suggest that in similar circumstances a person who engaged in this activity would face no consequences.” No doubt. You could ask David Petraeus about that.

Mr. Comey and the FBI will forward their recommendation now to Mrs. Lynch for her decision on whether to proceed with the evidence. Mr. Comey’s recommendation, though deeply disappointing to many, was expected. President Obama has made his assessment of Hillary’s “extremely careless” performance quite clear already, and it’s his Justice Department.

Mr. Comey’s benign conclusion follows by several days Mrs. Lynch’s tea with Bill Clinton at the Phoenix airport, where they said they discussed only the former president’s new grandson. Whatever else that meeting was, it was an endearing moment when the affairs of state could grind to a halt to enable a discussion of a new grandchild’s first trick, not yet a spoken word but perhaps a winsome drool. Nevertheless, the meeting takes on a new significance.

Other coincidences abound. On Monday, just before Mr. Comey’s announcement, The New York Times disclosed that Hillary is considering retaining Mrs. Lynch as the attorney general in her Cabinet. Hint, hint. But of course she has to be elected first.

The “clearing” of Hillary, such as it is, will be catnip for Donald Trump and whomever among the sore-loser Republicans is willing to help. The FBI decision can be read as good news for the Donald; if Hillary were to be indicted the party would be obliged to throw her overboard and recruit Joe Biden or even Bernie Sanders, either of whom would be an untainted.

Now the Donald and the Republicans have an issue they can exploit all the way to November. Hillary, like Bubba before her, is the gift that keeps on giving.

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