The Condition of the Rule of Law in the Wake of Hillary Clinton’s Email Scandal

Hillary and Bill Clinton: Serial Law Breakers

Image by Gage Skidmore

Hillary Clinton – Image by Gage Skidmore

As most Americans are aware, this week FBI Director James Comey opted to not help prosecute former Secretary of State and presumptive Democratic Presidential nominee Hillary Clinton in spite of the fact that Clinton recklessly and irresponsibly both housed and conducted official government business on her private email servers. The obvious proper venue for such delicate communication was through a government server rather than her private ones. In so doing, Clinton not only made high level government information vulnerable to America’s sworn enemies but she also demonstrated the type of careless behavior that will be on full display should she become our nation’s next Commander in Chief. Comey’s political decision notwithstanding, there is little doubt in the minds of most Americans that Clinton broke the law.

 

This illegal behavior becomes obvious by observing the plain language of the relevant federal statute. Contrary to Comey’s defense of his own inaction, the law simply requires mere gross negligence rather than criminal intent before assigning culpability. The Espionage Act (18 U.S. Code Section 793) says in part:

Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—Shall be fined under this title or imprisoned not more than ten years, or both. (Emboldening added)

Anybody following the facts of the Clinton email scandal knows that Clinton was in direct violation of this national law. By virtue of her high government position, Clinton was privy to highly sensitive information and communications. Yet, through wanton negligence on her part, Clinton allowed this important government data to be both compromised and destroyed. In fact there is little doubt that had a Republican, or even a person of lesser stature, committed the same crime, they, in all probability, would have prosecuted to the full extent of the law. In fact, the FBI last summer actually helped convict Bryan H. Nishimura, an unknown Navy reservist, for the identical crime committed by Clinton. As explained by Judicial Watch:

Illustrating that FBI Director James Comey is a liar and a fraud, his agency helped convict a Navy reservist last summer of the same crime that he just cleared Hillary Clinton of committing. In that case the reservist from northern California got criminally charged—as per FBI recommendation—for having classified material on personal electronic devices that weren’t authorized by the government to contain such information. The FBI investigation didn’t reveal evidence that the reservist intended to distribute classified information to unauthorized personnel, so he was just being “extremely careless” like Clinton and her top aides. Similar offenses, vastly different outcome. The key factor, of course, is that one subject is a regular Joe without Clinton-like political connections. His name is Bryan H. Nishimura and last July he pleaded guilty to unauthorized removal and retention of classified materials after the FBI found such materials were copied and stored in at least one “unauthorized and unclassified system.” Clinton had droves of classified and top secret materials in an “unauthorized and unclassified system.” Nishimura had been deployed to Afghanistan as a regional engineer for the U.S. military and had access to classified briefings and digital records that could only be retained and viewed on authorized government computers, according to the FBI announcement, which defines the reservist’s crime in the following manner; “handled classified materials inappropriately.” So did Clinton on a much larger scale.1

The laws of America apply only to the “little people” rather than the Clintons, in other words.

 

Bill Clinton - Image by Gage Skidmore

Bill Clinton – Image by Gage Skidmore

This is not the first time the Clinton crime syndicate has escaped the rule of law. Our Constitution provides an impeachment mechanism whereby the President can be removed from office for violating the law (Article II, Section 4). In fact, in the late 1990s, this clause was used in an attempt to remove former two-term President Bill Clinton from office for criminal behavior. At that time, the political left and the Clinton “spin machine” sought to frame the issue of Clinton’s impeachment in terms of a vindictive Republican Congress seeking to punish a sitting President for his personal, sexual indiscretions with White House intern Monica Lewinski. In actuality, the issue at stake was whether the President was bound by the same set of laws that govern everyone else or was he somehow above the law. Previously, Clinton had perjured himself in a court proceeding involving a sexual harassment lawsuit that had been brought against him thus explaining why he ultimately was held in contempt of court and his license to practice law was thereafter temporarily suspended. In order to cover up his dalliances, he had also arguably obstructed justice. Thus, his impeachment related to whether he was under the law like everyone else or exempt from it. Sadly, although impeached by the House of Representatives, the Senate failed to remove Clinton from office. The law, in other words, just applied to the “little people” rather than to the improprieties of the President of the United States. Thanks to Director Comey’s decision not to assist prosecution of Hillary Clinton, history is tragically repeating itself as now the other half of team Clinton has too escaped the long arm of justice.

 

Yet, such inconsistency is a far cry from how our system is supposed to operate. American is built upon the premise that the law should apply equally to everyone. Our Constitution originally created a government of laws rather than men. Thus, America’s governors were just as accountable to the law as were the governed. In fact, according to John Adams, “…the very definition of a republic is ‘an empire of laws, and not men.’”2 The Constitution prohibits an elite set of regal rulers to function outside the authority of the law when it declared, “No title of nobility shall be granted by the United States” (Article I, Section 9, Paragraph 8).3 As mentioned earlier, the Constitution also provides the impeachment mechanism whereby even the President can be removed from office for violating the law (Article II, Section 4).

 

The Biblical Origins of the Rule of Law

Yet, where did this cherished notion of the rule of law first originate? Most are startled to discover that it can be traced back to God’s Word, the Bible. This notion of the king being under the Law rather than over it is an ancient biblical principle. Israel’s kings had to obey certain laws or suffer punishment. For example, he could not multiply for himself horses, silver and gold, and wives (Deut 17:16-17). In order to demonstrate that he was under the Law, he had to write out a copy of it by hand in the presence of the Levitical priests upon assuming the throne (Deut. 17:18-20). In fact, the down fall of every major king within the nation of Israel can be traced back to the king placing himself above the law rather than under it. Solomon’s downfall can be attributed to his sin of multiplying wives in violation of the Law (1 Kgs. 11). Solomon’s father David also experienced divine discipline and was temporarily removed from the throne because of his rebellion against the Mosaic Law’s prohibitions against lying, adultery, and murder (2 Sam. 11‒12). Numerous other biblical examples abound. For example, both Saul (1 Sam. 13) and Uzziah (2 Chron. 26) experienced severe divine discipline because they violated God’s principles against intermingling the offices of priest and king. Interestingly, Israel’s kings during the divided kingdom were either designated as either good or bad based upon whether they respected the Mosaic Law. While all of the nineteen northern kings were considered bad, eight of the twenty southern kings were considered good since they at least mildly respected God’s Law. However, all kings were evaluated based upon whether they viewed themselves as being under the Law or above it. In fact, God raised up the office of the prophet for purposes of covenant enforcement (2 Sam. 12:1-15). The biblical prophets filed metaphorical lawsuits in order to show wayward kings how they had transgressed the Mosaic Law (Hos. 4:1; 12:2; Mic. 6:2). They did so because the king was considered to be under the law rather than above it.

 

This contrast of the king being above or under the law is vividly brought to the forefront in the story of Ahab and Naboth’s vineyard (1 Kgs. 21). King Ahab coveted Naboth’s vineyard and thus offered to purchase it from him. When Naboth, the vineyard’s owner, refused to sell, King Ahab began to sulk since the Mosaic Law contained restrictions preventing the Hebrew government from taking property since it valued protecting individual property rights. In other words, as a Jew, Ahab understood that there was nothing more he could do to gain the vineyard for himself if Naboth was unwilling to sell it. However, Ahab’s wife, Jezebel, a non-Jewish Phoenician, ridiculed her sulking husband by saying, “Do you not reign over Israel?” (1 Kgs. 21:7). Jezebel’s point was that, “where I come from kings just take what they want regardless of the wishes of the property owner.” Sadly, Ahab capitulated to the perspective of Jezebel. Through false charges and murder, the couple unjustly confiscated Naboth’s vineyard in violation of the Mosaic Law.

 

However, the initial differing points of view between Ahab and Jezebel regarding what a king could and could not do with respect to the Mosaic Law illustrates a biblical versus a non-biblical frame of reference. The Jewish limitation upon the king, or the notion that the king is under the law rather than over it, finds illustration in the initial reaction of Ahab. Ahab sulked because the Mosaic Law placed a limitation upon him acting out his covetous desires in spite of the fact that he was the king. By contrast, the non-biblical, non-Jewish, pagan perspective that the king had unlimited ability to satisfy his covetous desires by trampling upon the legal rights of others is illustrated in the reaction of Jezebel, the Phoenician. She ridiculed Ahab by exhorting him to do as he pleased regardless of Naboth’s rights. Because Ahab opted to follow the pagan perspective of Phoenicia and put himself above the law, God announced through the prophet Elijah that the very place where the dogs licked up the blood of Naboth would be the same place the dogs would lick up Ahab’s blood (1 Kgs. 21:19). Because the northern kings followed the example of Ahab by also putting themselves above the Mosaic Law, it became a foregone conclusion that the northern kingdom would undergo national discipline, which was eventually meted out at the hands of the Assyrians in 722 B.C. Clearly then, the rule of law is a biblical idea.

 

From the Bible to the Constitution

How did this ancient, biblical principle, that the king is subject to the same law as that which governs everyone else, find its way into the American system of government? Contrary to popular opinion, America’s founding fathers relied heavily upon Scripture when they set forth our Constitution. In fact, according to Political Scientists Donald Lutz and Charles Hyneman, thirty-four percent of the primary citations found in the writings of America’s founding fathers came from the Bible. In their written works from the founding era, America’s founders cited the Bible four times more than they cited any other single source.4 Interestingly, of the books of the Bible cited, the Book of Deuteronomy, because of its emphasis upon biblical law, was the book most frequently referenced by America’s founders.5 Thus, it should come as no surprise that the concept that the king is under the law rather than over it, which receives such clear articulation in Deuteronomy 17:14-20, would also be resident in America’s founding documents.

 

In addition to references to Scripture, it is generally believed that Samuel Rutherford’s book Lex, Rex or “The Law and the Prince” influenced the framers’ belief that the king was under the law rather than above it. Rutherford most likely discovered this principle in Scripture since he was “a Presbyterian minister who was one of the Scottish commissioners at Westminster Abbey in London and rector of St. Andrew’s church in Scotland.”6 Rutherford likely found solace in this biblical principle in his own day as he used it to challenge the “divine right of kings,” which is the notion that the king could do as he pleased since he was not personally subject to the same law that governed everyone else. Attorney John Whitehead explains the significance of Lex, Rex upon legal thinking:

With the Bible there is a standard of right and wrong. These fundamental principles made up the reformation world view. They were passed on in substance and without significant alteration to the American colonies through the influence of a book written by Samuel Rutherford, Lex, Rex or, the Law and the Prince (1644)…Lex, Rex challenged the fundamental principle of seventeenth-century political governments in Europe: the divine right of kings. This doctrine held that the king or state ruled as God’s appointed agent. Therefore, the king’s word was law…Counterbalanced against this position was Rutherford’s assertion that the basic premise of government and, therefore, of law must be the Bible, the Word of God rather than the word of any man. All men, even the king, Rutherford argued, were under the law and not above it…But Rutherford’s ideas lived on to influence later generations. His basic presupposition of government based upon the absolutes of the Bible was finally realized in Colonial America through the influence of two sources: John Witherspoon and John Locke. Witherspoon, a Presbyterian minister who had been educated at Edinburgh University, brought the principles of Lex, Rex into the writing of the Constitution. The only clergyman to sign the Declaration of Independence, Witherspoon was a member of the Continental Congress from 1776 to 1779 and from 1780 to 1782. He played a key role on a number of committees of the first congress. Witherspoon’s students, profoundly influenced by him, also reached positions of eminence in the Constitutional Convention and in early United States history. They included a president, James Madison; a vice president, Aaron Burr; ten cabinet officers; twenty-one senators; thirty-nine congressmen; and twelve governors, as well as other public figures. James Madison was particularly influenced by Witherspoon…The Witherspoon influence later played a major role in the drafting of the Constitution. In fact, Madison has been labeled ‘the Father of the Constitution’ for his contribution in writing the founding document.…John Locke.…elaborated fundamental concepts such as unalienable rights, government by consent, the social compact (a constitution between the people and the government), separation of powers, and the right to resist unlawful authority. The biblical base for these concepts is set forth in Rutherford’s Lex, Rex.7

Witherspoon’s influence upon America’s founders was largely exercised due to his role as an educator. As explained by legal scholar John Eidsmoe:

Witherspoon’s list of accomplishments include: chairman of the Somerset Committee of Correspondence, member of the New Jersey Senate, member of Congress, signer of the Declaration of Independence. However, his greatest contribution was as President of the College of New Jersey (since 1896 known as Princeton University). It was there he helped train the men who would become the leaders of the new nation.8

In sum, the notion that the king is under the law rather than over it eventually became enshrined in American jurisprudence when Samuel Rutherford consulted the Scripture as he challenged the European notion of the “divine right of kings.” Rutherford’s ideas, as crystallized in his work Lex, Rex, then impacted key thinkers such as Witherspoon and Locke. They, in turn, influenced key American founders, such as James Madison. Thus, the Constitutional notion that the king is accountable to the same law that governs everyone else comes directly from Scripture. Those, like Rutherford, who best articulated this principle which in turn influenced our Constitution’s framers, took their primary cues from God’s Word.

 

Return to the “Divine Right of Kings”

When the American system allows the wealthy and well-connected to evade the same legal standard of justice that applies to everyone else, an ancient and biblical principle of the rule of law is violated. In so doing, an important legal doctrine that providentially found its way into America’s founding is denied. When such a denial transpires, we run the risk of returning to the primitive and barbaric principle of the “divine right of kings.” This sad reality is exactly what is at stake in the Clinton email scandal, just as the same issue was also at stake during the Clinton impeachment trial. Whitehead further observes:

It is important to understand that our political institutions have their base in this reformation thinking. When we contrast this fact with the increasing arbitrary nature of our modern civil government, we see that we have, in effect, come full circle. Today, in many ways, our “democratic” institutions reflect the governmental viewpoints of those absolute monarchists who condemned Samuel Rutherford.9

Americans need to decide if they are going to be a nation of laws or a nation of mere men. How desperately in need we are today of a new generation of Americans who will return to the pages of God’s Word and America’s founding principles. In other words, we need more Rutherfords, Lockes, and Witherspoons and fewer Comeys and Clintons. Absent such a reversal, our fate will be regression back to the unenlightened notion of an oligarchical rule by a handful of philosopher kings who perpetually pass edicts affecting only their subjects on the grounds that such laws are only for the “little people.”Endnotes


  1. http://www.judicialwatch.org/blog/2016/07/comeys-fbi-helped-convict-navy-reservist-handled-classified-materials-inappropriately/ []
  2. John Adams, The Works of John Adams, Second President of the United States, ed. Charles Francis Adams, 10 vols. (Boston: Little, Brown, 1856), 4:194. See also p. 106. []
  3. See also Article I, Section 10, Paragraph 1. []
  4. For the research of Lutz and Hyneman, see Donald S. Lutz, “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought,” American Political Science Review 78, no. 1 (March 1984): 189-97.; Donald S. Lutz, The Origins of American Constitutionalism (Baton Rouge, LA: Louisiana State University Press, 1988), 141-43. []
  5. See Lutz, “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought,” 192. []
  6. John Whitehead, The Second American Revolution (Westchester, Ill: Crossway, 1982), 28. []
  7. Ibid., 28-30. []
  8. John Eidsmoe, Christianity and the Constitution: The Faith of Our Founding Fathers (Grand Rapids, MI: Baker, 1987), 81. []
  9. Whitehead, 30. []

Comments

  1. 1962 democrats removed God and His word from the Public Schools, 53 years later that perverted tree has matured and the fruit on it is unfit for consumption. lawlessness abounds in the Government and is trickling down into our inner cities and affecting large parts of society. Evil must run its course before the Lord come back and restores sanity to a fallen world. Its going to get a whole lot worst before it gets better. People need to get saved out of this fallen world and let those who reject God and His truth do their thing as they did in the days of Noah. God is still on the Throne and we win.

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