By now I intended to have published a thorough essay deciding the question of whether conservatives, and their claims that James Comey was part of a Justice Department conspiracy to save Hillary from indictment, were more unethical that Clinton supporters in the news media and elsewhere pronouncing her “exonerated” because she’s not facing trial. Alas, pressing matters have intervened, but no matter: I will present it soon. Meanwhile, however, allow me to clean up a relevant controversy.
Much of the mockery of Comey’s explanation of the FBI’s recommendation, since accepted with a big “Whew!” by Loretta Lynch, arises from his assertion that while Hillary’s handling of classified information was “extremely careless,” it did not arise to the standard of “gross negligence” specified in the relevant statute. Too many pundits and commentators to mention have snorted at this, arguing that there is no practical difference. Comey did not help, when he was asked the question in his Congressional testimony, by explaining the difference as one of enforcement: in a century, he said, no conduct similar to Clinton’s has ever been found to meet the “gross negligent” standard sufficiently to warrant prosecution. Attorney General Lynch, when she was asked the same question by Rep. Jim Sensenbrenner (R-Wis), just repeated how she accepted the recommendations of Comey not to indict Clinton.
There is a difference, however. I don’t know why neither Comey nor Lynch could articulate it, but it exists, and I will now make it clear.
For this analogy I owe thanks to a D.C. lawyer, ethics expert and law professor friend of long-standing with whom I was recently discussing the Clinton matter. He has a gift for analogies, and said this…
“Intent, is when you drop a bowling ball out of an office building window, aiming so that it will kill somebody by falling on the victim’s head.”
“Gross negligence is when you toss a bowling ball out of an office building window without looking in order to get rid of it, knowing full well that it is mid-day and very likely to fall on someone’s head.”
“AH HA!” I interrupted. “Then ‘extreme carelessness’ is when you toss the bowling ball out of an office building window without looking, in order to get rid of it, because it’s 3 AM and you mistakenly/ignorantly/ stupidly assume nobody will be walking on the sidewalk at that time of night!”
“Exactly!” he said.
More to come…