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Hillary acolytes can't seem to grasp that Beltway-insider status doesn't exempt from prosecution

Glenn Reynolds

By Glenn Reynolds

Published April 11, 2016

Hillary acolytes can't seem to grasp that Beltway-insider status doesn't exempt from prosecution

The United States Constitution provides that “No Title of Nobility shall be granted by the United States.” But somebody needs to explain this to the courtiers in the Washington press corps.

The latest offender is National Journal reporter Ron Fournier, who — discussing the possibility of Hillary Clinton being indicted for her secret private server and mishandling of highly classified information — observed on MSNBC's Morning Joe: "Legally though, there's a big bar that you have to get over to prosecute anybody for these crimes, much less somebody who is running for president. … I do understand that when somebody is running for president, there is a higher bar you have to get over because we can’t have a system in which we are constantly charging people who are running for president of crimes. ... Politically, there are severe questions about her judgment that voters really have to look into. Legally … there is a higher bar you have to get over before you prosecute somebody who is running for president. That's just a fact."

In response, host Joe Scarborough asked, “In what statute is that?”

Well, no statute actually provides that. Other nations do provide varied degrees of legal immunity to officeholders, but in the United States we have no such thing.

But maybe Fournier was just suggesting that prosecutors, in deciding whether or not to charge Hillary with a crime, should take her candidacy into account. But, as lawblogger Seth Barrett Tillman notes, the Justice Department has said otherwise. In its U.S. Attorneys’ Manual, which provides guidance to prosecutors, the Justice Department provides this basis for charging someone with a crime: "The attorney for the government should commence or recommend Federal prosecution if he/she believes that the person’s conduct constitutes a Federal offense and that the admissible evidence will probably be sufficient to obtain and sustain a conviction."

What’s more, the manual has this to say about taking politics into account: Don’t!

"In determining whether to commence or recommend prosecution or take other action against a person, the attorney for the government should not be influenced by: The person’s race, religion, sex, national origin, or political association, activities or beliefs" (emphasis added).

There are, of course, media types — and even some law professors — trying to run interference for Hillary now. But there’s not much in the way of legal basis for not charging her, if the evidence looks as if it will “probably be sufficient to obtain and sustain a conviction.”

Still, it’s easy to understand why our Beltway betters think that law shouldn’t be applied to insiders the same way it’s applied to the rubes out in Dana Loesch's "Flyover Nation." After all, it was TV talking-head David Gregory who was given a pass for a “(clear) violation” of a District of Columbia gun law, by all appearances because he was an insider in good standing with the establishment. Lesser Americans don’t get the same free pass because, well, they’re lesser Americans.


And, or course, Republicans running for President are always lesser Americans. AsJim Geraghty notes: "Fournier conveniently forgets ‘we’ already are charging people who are running for president of crimes, based on sheer partisan animosity and desire to generate embarrassing headlines. A partisan, runaway prosecutor indicted Rick Perry on nonsense charges, charges that the Court of Appeals dismissed and ruled were a violation of Perry’s First Amendment rights and powers as governor. In Wisconsin, a hyper-partisan district attorney and his special prosecutor targeted everyone they could find connected to Scott Walker and launched a multi-county criminal investigation of First Amendment — protected speech."

As always, the special pleading from the courtier press only benefits one group. Is it any wonder that outsiders like Bernie Sanders and Donald Trump are attracting so much support from the lesser Americans? And what will the ruling class do if those lesser Americans adopt the casual and self-entitled approach toward the law that their "betters" have been displaying ?

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Glenn Harlan Reynolds, a University of Tennessee law professor, is the author of The New School: How the Information Age Will Save American Education from Itself and is a columnist at USA TODAY.

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