Nominating a Presidential Candidate Under Active FBI Investigation Is An Incredibly Risky Gamble [View all]

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CURRENT AFFAIRS
March 14, 2016

Nominating a Presidential Candidate Under Active FBI Investigation Is An Incredibly Risky Gamble
by Nathan J. Robinson

Nathan J. Robinson is a Social Policy PhD student at Harvard University, as well as an attorney and children's book author. He is the editor of Current Affairs.

So nobody should care about the damned emails. Clinton’s misdeed should be an internal agency matter, with procedures fixed in the future. In terms of its significance to human wellbeing, the issue is just as trivial as Bernie Sanders says it is. Clinton is right about overclassification, and it’s a just a shame she only became interested in the problem when it began to threaten her personally.

Yet now we have created a legal structure in which the mishandling of totally harmless classified information is treated akin to terrorism, unless Clinton is treated as being at serious risk of prosecution, we essentially acknowledge the nonexistence of the rule of law. There are two possibilities here: either we trust the Obama administration to treat this case like any other, in which case (given the government’s paranoia, liberal deployment of the Espionage Act, and history of other excessive prosecutions) Clinton has a massive looming liability and nominating her would be a massive gamble. Or we believe that, while the government will eagerly make mountains out of molehills for minor Naval reservists, Hillary Clinton will receive the benefit of the doubt due to the political necessity of ensuring she becomes the Democratic nominee and keeps Trump out of the White House. And that would require us to accept some very troubling conclusions about the politicized nature of the American justice system.

In a world where we expected the law to be equally applied to all, Democrats should be panicking right now over the status of the investigations against Clinton and the Clinton campaign’s troubling responses. The Washington Post has documented numerous misstatements and evasions made by Clinton around the emails, concluding that “it appears Clinton often used highly technical language to obscure the salient fact that her private email setup was highly unusual and flouted existing regulations.” All of this should be making Democrats panic, and sending them scrambling to find a non-indictable nominee.

But that’s not happening, for a very obvious reason. Nobody seriously believes the law would be applied to Clinton with the same pitiless irrationality as it was to Bryan Nishimura. Yet that leaves us with a stark choice: either treat the Clinton scandal as troubling and a major campaign issue, or acknowledge that we are entrusting an oligarchical justice system to make the issue go away for Clinton in a way it wouldn’t for anyone else. Neither choice should leave Democrats comfortable. ?

https://www.currentaffairs.org/2016/03/nominating-a-presidential-candidate-under-active-fbi-investigation-is-an-incredibly-risky-gamble