In the wake of FBI Director Jim Comey’s decision the day after Independence Day, 2016 to not recommend that the Department of Justice pursue a criminal case against Hillary Rodham Clinton, former Secretary of State, Former Senator from New York,former First lady of the United States, former First Lady of Arkansas, former licensed attorney and former staffer for the Watergate Investigators pursuing high crimes and misdemeanors forty-three years ago, there is outrage and consternation among the pundit class. There are those who say that Comey stabbed “Us”(meaning We the People) in the back. And there are those who compare what Comey did to what Chief Justice John Roberts did in the case of NFIB v. Sebelius, the infamous ‘Obamacare’ case.
But there are more than a few who are making the argument that, while they did not agree with the decision of either man, some sliver of justification can be found, some shard of their characters may be salvaged with the explanation that both men were silently but pointedly keeping their revered institutions, the Supreme Court and the FBI, above the political fray while with a wink and a nod giving the politicos a signal that the ball is in their court, and by politicos, they mean both elected officials and electors.
The argument for Roberts goes that a Congress passing legislation is a political act, and the wrangling over the specifics of an act and the maneuverings pro-and-con and all the delegatory determinations regarding the act, are valid functions of the Congress. So that, when the Affordable Care Act was constructed and the IRS was installed as it’s enforcement agency, Roberts opined that Congress was within it’s constitutional parameters in matters of taxation and that made everything else moot.
My reponse to the apologists is, why then did SCOTUS take the case in the first place? If Roberts was maintaining the separation of powers and the question before the Court was whether the Congress could tax, all he had to do was deny certiorari and issue a finding that the power to tax was inherently Constitutional and those agencies delegated the authority to administer Constitutional acts of Congress needn’t be unduly ruffled. Oh, wait, the 11th Circuit had ruled on appeal that the ‘individual mandate’ was unconstitutional, and while the rest of Congress’s business was it’s business the law could stand without the individual mandate. Well, the Court had to fix that then, didn’t they? Oh, Roberts fixed that, didn’t he?
The conventional wisdom among the apologists is that Roberts was saying to the Congress and to the people that it was up to them to fix this, that if there were enough votes to pass in Congress under it’s rules, and the people had duly elected said Congress, then any griping and moaning about the government forcing an individual to do something needed to be corrected by the same political process that got us to that point in the first place. Constitutional questions? Roberts couldn’t be bothered.
Remember that the 11th Circuit had done what a federal court is supposed to do in ruling on legislation – Constitutional or not Constitutional. So what Roberts did was just the opposite of what his apologists said he was doing. He is the one who insinuated the judiciary in the political process by nullifying the valid work of the 11th Circuit. Roberts did no one on the right side of the aisle any favors, and if they thought he was being cagey and giving the next Congress the green light to go in and “fix it”, no that’s not what his job was. It was his job to illuminate unconstitutionality. That’s what his job is. Not to encourage politics as usual. That sort of thing takes care of itself.
Similarly, James Comey in the Hillary Clinton case is said by some to have pulled off a stealth ambush of her by standing in front of a national audience and reciting her sins, but not recommending the case go forward because, knowing it would run up against a brick wall and the details be buried, he could, under cover of ‘informing the public of the facts of the case so as to show no outside influence’ by DOJ or the administration, give ample fodder to sway public opinion in the general election upcoming and deny Clinton the presidency. i.e., give the Trump campaign enough ammunition to destroy her.
The fallacy in that supposition is that there has been enough independent reportage on the e-mail scandal that the public has already been sufficiently informed as to the generics of the case to have indicated in voluminous national polling that Clinton has been dishonest, is untrustworthy and so on. Just as, for example, we have known for years that Clinton did nothing to protect or, once attacked, to save our personnel in Benghazi.
Is it Jim Comey’s job to cagily give congressional committees and department agencies the green light to pass laws against Hillary Clinton doing further damage to the US or to restrict her access to classified information, and is it his job to do opposition research for the Trump campaign? Well, thanks for the huge favor, Jim, but in the meantime, Hillary is a free woman, still on the campaign trail and you didn’t need to put 150 agents on the case for all these months to figure out “intent”. She had already admitted what she did. The media had already done the heavy lifting in finding out about the server in the basement, the volume of the emails, the deletions, the secret and top-secret classifications. And you didn’t need to give the IT specialist in the case immunity to determine if there was “intent”, either. The fact that she used an IT guy was prima facie evidence of intent.
Boy, didn’t John Roberts and Jim Comey just stealthily uphold the integrity of their institutions and keep themselves and those institutions above the fray and give us fodder for the next election and, and, and………..Good grief. The Constitution means nothing, the Rule of law means nothing but by golly we’re gonna win the next election and the Constitution will mean something THEN, by golly. Yes, indeed, the law will be applied equally THEN, by golly.
Yeah, that’s it. Sign the petition. Donate. Send whatever you can afford. Vote early. Make your voice be heard. We’ve got’em on the run, now. Why, Bill and Hill will be hiding out in a cave outside of Hope before long. Yeah, that’s it.
So you see, Comey and Roberts are stand-up guys. It’s just that they are too busy assessing all of the facts and reading all the briefs and staying above the fray to actually defend the Constitution or uphold the rule of law. It’s all on us to protect the country from Zeke Emmanuel and Bill Ayres and John Podesta and Huma Abedin’s relatives. Guess we’ll have to be more vigilant…..or pro-active….or something. Nobody in Washington wants to get their hands dirty.