Tuesday, 16 August 2016 17:05

Republican perjury claim vs. Clinton: Trump, politics, justice and prosecutorial discretion

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comey sitA new republican attack against Hillary Clinton.  Who’d thunk it?

Members of Congress want the US Department of Justice to investigate Hillary Clinton’s alleged lying to Congress regarding her testimony she gave before Congress.  A letter has been released to support their claims https://oversight.house.gov/wp-content/uploads/2016/08/2016-08-15-JEC-BG-to-Phillips-USAO-DC-Perjury-Investigation.pdf


So, let’s get some obvious points out of the way before analyzing this any further:

  1. Anybody pretending that the two republicans and others are only seeking justice and not seeking political advantages ought to take a lie detector test.  The Republicans have been on a non-stop effort since the early nineties to catch Hillary and Bill Clinton.  Bill gave them plenty ammunition with his inability to keep his pants on and his further inability to tell the truth.  Hillary has not been zapped on any particular statement or action but there is a general feeling of distrust hovering over her that has kept her poll numbers from blowing Donald Trump away.
  2. Donald Trump has been, perhaps, less credibility than Hillary if you check out the Pinocchio’s and Pants on Fire Lying meters.  Also, nobody can say with a straight face that Trump is not always denying the obvious, making excuses for his behaviors and actions.   He is the last person to claim Hillary is dishonest, but, in this case, it is two republicans making the claim.
  3. The republicans are concerned they cannot beat Hillary on election day, so, they have and will make Hillary perjury claim against her.  By the way, the democrats will use Trump’s statement that his tax rate is none of our business, as they attack him for not releasing his tax returns.
  4. I have my own bias.  I am definitely a no-Trumper, don't pretend I'm not.  Yet, I am trying to present my opinion, based upon my view of all of the claims, evidences, political defenses and charges.  You are welcome to accept my opinion, or reject it.

Still, two GOP House members Reps.Bob Goodlatte (R-Va.) andJason Chaffetz (R-Utah) told the U.S. attorney for the District of Columbia, that Hillary Clinton committed perjury based upon the following reasons.  They even released the video to support their claims

Here are their basic allegations of perjury:

Allegation 1: In response to a question about emails handled on her private server Clinton said  "there was nothing marked classified on my emails, either sent or received.

Allegation 2:  Clinton's testimony that her attorneys reviewed every single email on her private server to identify work-related messages that should be returned to the State Department.

Allegation 3: Clinton's testimony that she provided the FBI with the one private server she used while she was secretary of State. Comey contradicted that when he said Clinton used several servers

Allegation 4 Clinton’s testimony that she gave the State Department all the work-related emails she had, which were subsequently turned over to investigators. However, Comey testified that the FBI found thousands of work-related emails that were not returned to the department.

Before going through the analysis, let us be clear about one major point.  Proving perjury in any type of case is very difficult.  Proving perjury in one of the most-politically charged elections involving one of the most detested politicians in recent American history, is another case altogether.

The trier of fact will need to get into the intent, the scienter of Hillary Clinton when she made the statements and be able to prove beyond a reasonable doubt that he lied under oath.  The Justice department would need to determine whether there is sufficient evidence to bring the case forward to convince a jury that she lied on any of the claims. 

Or, in other words, the prosecutor would need to feel it has a slam dunk case to go forward in bringing the case.  Presumably, just as the republicans making the charge have a certain interest in prosecuting, the US Attorney just might also have an interest in not doing so.  Thus, politics at its best and politics at its worst.


On Allegation one, interestingly, the two republicans making the case did not provide the complete testimony of the FBI Director where he said that the three emails of the 35,000 emails that were marked classified, were marked improperly and were embedded within the email.  When he was asked if those improper markings could lead her to believe they were not classified and is response-that would be a reasonable inference. 

On Allegation two, Comey said there was no effort to deceive, no intent to hide. 

On Allegation three—as far as the so-called contradiction in number of devices, Comey said there was one device was decommissioned, she replaced it.  Major question—did Clinton know there were changes in the server and is the issue relevant to any criminal wrongdoing?

Allegation 4: Did Clinton give State Department all of her email which obviously she did not.  Good question.  But here is where it gets a little hairy—her attorneys went through the emails, not her.  Unless there is a smoking gun where she told the attorneys which emails not to send to State, and that she had active knowledge that the attorneys did not send all of the emails of which the State Department might feel entitled, this is a loser of an allegation.  Justice would need to determine what the attorneys knew and what they communicated to Clinton.  Good luck with that.

Indeed, if Clinton lied under oath, she should be fried.  But, based upon the allegations made, the information the two republicans failed to provide, the type of case needed to bring before a jury in any type of case, the political climate involved, I doubt the Justice Department will prosecute.

Moreover, given the facts of this case, even the shoe were on the other foot and a Republican former Secretary of State was being accused under the same set of circumstances, I doubt that a Republican Justice Department would pursue this case at this time.

Oh, by the way, do you think these two congressmen are willing to state under oath that their motivations are not at least equally based upon their political interests in defeating Clinton at the polls?

Shame this question is not being asked.



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