Since the beginning of statism, rulers have sought to monopolize the provision of justice and criminal punishment for obvious reasons. Not only is it lucrative to do so, in the form of rulers taking for themselves in fines what should be given to victims in restitution, but it also allows for agents of the state to engage with impunity in activities which are criminalized for the commoner. Since time immemorial for those alive at the time of this writing, the nation-state has done so the world over. But when a government politician or enforcement agent is examined by government investigators or tried in a government court, this creates a conflict of interest. Government prosecutors and judges may be interested in promoting justice (or an illusion thereof), but they must also interested in maintaining the structure of state power, which may be endangered by indicting or convicting a politician or enforcement agent. And then there is the matter that the laws being used by said investigators, prosecutors, and judges are monopolized by the state, the common result of which is that a politician or enforcement agent is exonerated for what would land a commoner in prison.

While there is a long line of abuses and usurpations stretching back millennia, three well-publicized concrete examples of these problems have manifested themselves just in the United States in the month prior to the time of this writing. These are the non-indictment of Hillary Clinton for her mishandling of classified information, the overturning of Bob McDonnell’s conviction for political corruption, and the acquittal of Caesar Goodson in the Freddie Gray case. Let us consider each of these cases.

Hillary Clinton

While Hillary Clinton was Secretary of State, she used private email servers and mobile devices to conduct government business. On July 5, 2016, an FBI investigation found that “from the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification. Separate from those, about 2,000 additional e-mails were ‘up-classified’ to make them Confidential; the information in those had not been classified at the time the e-mails were sent.” Three additional classified emails were found outside of the group of 30,000, one Secret and two Confidential. Evidence was found that Clinton or her colleagues were “extremely careless in their handling of very sensitive, highly classified information.” According to FBI director James Comey, “None of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails were housed on unclassified personal servers not even supported by full-time security staff, like those found at Departments and Agencies of the U.S. Government—or even with a commercial service like Gmail.” It was assessed that hostile actors could have gained access to Clinton’s email account and that they did gain access to email accounts belonging to people who corresponded with Clinton on classified matters.

Despite such a damning litany, Comey recommended that no charges be brought. Although the requirements for criminal charges under USC Title 18, Section 793, Subsection F were clearly met, Comey set up a straw man by claiming that there is not sufficient evidence of intent, even though intent is not part of the statute. This is for good reason because negligence in protecting classified information that can put innocent people in danger, and is therefore a malicious form of incompetence. Comey’s language concerning a “reasonable prosecutor” (whatever that means) was especially concerning, as it condemns as unreasonable anyone in the Department of Justice who might disagree with Comey’s recommendations. It is also noteworthy that Gen. David Petraeus and Maj. Jason Brezler were pushed out of the military in recent years for less.

The most likely explanations for this result are that Attorney General Loretta Lynch received her major career push from former President Bill Clinton, that Hillary could expose much deeper issues and many more violations in response to being indicted, that Comey lacks the fortitude to upset the electoral apple cart, and that Democrats care more about keeping power than accountability.

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