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Breaking News Alert This Week In Lawfare Land: What Happens Next?

Americans Don’t Trust Our Institutions Because They Fail To Prosecute Crooks Like Hillary


The FBI announcement Tuesday was not a surprise. It was always unlikely that Hillary Clinton would face a federal indictment for using a private email server during her tenure as secretary of State, no matter what the FBI’s investigation revealed.

The surprise was that FBI Director James Comey, in a prepared statement, laid out in detail all the ways Clinton broke the law—transmitting and compromising classified information, destroying state records, failing to turn over “several thousand” work-related emails, some of which contained classified material. He then concluded that no “reasonable prosecutor” would bring charges against Clinton in such a case.

If you’re wondering why Americans are losing confidence in our political system, this is why. Our political elites can’t even be bothered to conceal the appearance of corruption or their sense of entitlement.

The FBI announcement came just days after Bill Clinton met privately aboard a private plane with U.S. Attorney General Loretta Lynch. But don’t worry, Lynch said she didn’t discuss the FBI investigation with her old friend Bill, who in 1999 appointed her U.S. attorney for the Eastern District of New York. Also, don’t worry about reports that Hillary is open to retaining Lynch as her attorney general. That has nothing to do with how the FBI has handled this investigation, trust them.

Institutional Failure Unleashed A Wave Of Populism

The populist wave that elevated Donald Trump and Sen. Bernie Sanders during the primaries has been pushed along by a growing sense that our elites do what they want and our institutions are unable or unwilling to check them. Institutional failure has perhaps played a greater role in this than the behavior of the elites themselves, whom we generally don’t expect to behave well of their own accord. That’s why we have the FBI and the DOJ, and especially the Supreme Court. Americans increasingly feel that these institutions have failed, that they exist now primarily to serve the interests of their political masters and the whims of the administrative state.

As Ilya Shapiro noted here back in May, Chief Justice John Roberts did much to shatter the confidence of conservatives back in 2012 and usher in the era of Trump with his majority opinion in NFIB v. Sebelius. By recognizing that Obamacare was unconstitutional, but rewriting the individual mandate as a “tax” to save the law in the name of judicial restraint, Roberts undermined the credibility not only of the Supreme Court but of public institutions across the board. If the Supreme Court is willing to tie itself in knots to uphold an unconstitutional and unpopular law giving sweeping new powers to the federal government, then what good is the court?

Now Comey has done more or less the same thing. By detailing how Clinton broke the law, but concluding that no charges should be brought against her, he tacitly admitted political pressures influenced the FBI’s decision and perhaps undermined the rule of law. Comey even suggested the law might be applied differently to someone less important than Clinton. “To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences,” he said. “To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.”

No, what Comey was deciding was much more important. He was giving Lynch, whose future as attorney general depends on the good graces of a Clinton administration, cover for not indicting Clinton.

So Much For the Rule of Law

Regardless of whether Trump wins the White House or Sanders-style socialism comes to dominate the Democratic Party, Americans’ sense that their institutions are corrupt and corruptible will continue to feed the populist fervor that’s been so disruptive this election cycle.

There is of course some irony in this, since populist fervor tends to weaken the rule of law in favor of rule by demagogue. But a constitutional republic relies on the rule of law and therefore requires that some parts of the government function outside politics, or as far removed from politics as possible. The Supreme Court was specifically designed to be immune from political pressures. The highest court in the land is supposed to be concerned with the Constitution alone, not particular policy outcomes or the changing winds of domestic politics.

That’s why the Founders insisted on lifetime appointments to the Supreme Court. “Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence,” wrote Alexander Hamilton in Federalist No. 78. If the justices relied on the executive or legislative branches, “there would be an unwillingness to hazard the displeasure of either. If they were elected by the people, “there would be too great a disposition to consult popularity.”

Likewise, the FBI and DOJ are also supposed to be insulated from politics, as are the agencies charged with national security and foreign policy. To function properly and retain the confidence of the people, these offices must execute their duties, as far as possible, above the political fray and beyond the influence of the elites.

So much for all that.