By Roger J. Katz, Attorney at Law and Stephen L. D’Andrilli
Congress and the courts, the last hope of the American people, can hold and must hold Hillary Rodham Clinton accountable for her criminal acts.
New York, NY -(Ammoland.com)- “When these unlawful acts were committed, they were crimes only of the officers individually. The Government was innocent, in legal contemplation; for no federal official is authorized to commit a crime on its behalf. When the Government, having full knowledge, sought, through the Department of Justice, to avail itself of the fruits of these acts in order to accomplish its own ends, it assumed moral responsibility for the officers’ crimes.
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“Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means—to declare that the Government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.” ~ Olmstead v. United States, 277 U.S. 438 (1928); Dissenting Opinion of U.S. Supreme Court Justice, Louis D. Brandeis
To demand an accountable Executive Branch of Government Congress must appoint independent counsel.
The U.S. Constitution gave Congress the means to deal with a renegade Executive Branch. Congress saw that counsel, outside of Government, unshackled from the Executive Branch unbeholden to the President, beyond Government influence, could bring an outlaw Executive Branch to answer for its misdeeds.
Since the Department of Justice—a component of the Executive Branch—has failed the American people, Congress and the U.S. Supreme Court bear the onus to investigate Hillary Clinton anew and to bring criminal charges against her. Through the appointment of independent counsel—a special prosecutor—Hillary Clinton would yet answer for her misconduct.
Congress has, in the past acted to ensure that misdeeds of high level officers of the Executive Branch would not go unpunished. Congress must act now, before it is too late.
The Ethics In Government Act And The Act’s Present Status
The Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824 (1978), codified as amended at 28 U.S.C. §§ 591-599 (1994), had its origins in the Watergate scandal and in President Nixon’s attempt to cover up the investigation by manipulating the Justice Department.
“After Watergate, there was widespread recognition of the conflict of interest involved when the Attorney General controls prosecutors of high officials tied politically to the Attorney General. This recognition led to a series of proposals for statutory authority for special prosecutors. The key provisions of these proposals would vest the appointment of special prosecutors in the courts rather than in the Executive branch, and limit the Attorney General’s removal power.” “The Constitutionality of Independent Officers As Checks On Abuses of Executive Power,” 63 B.U.L. Rev. 59, by Charles Tiefer, Assistant United States Senate Legal Counsel.
The Department of Justice, a component of the Executive Branch, is taxed with the administration of Justice. But, reliance on the Department of Justice to root out corruption and prosecute serious crimes against high ranking public officials—including and particularly, the President, the Vice-President, and Cabinet level Officials remains problematic.
The Attorney General is the Nation’s top prosecutor. The Director of the F.B.I. is the Nation’s top police officer. Both the Attorney General and the Director of the F.B.I. are political appointees. The President of the United States appoints both. They serve at his pleasure.
Yes, the two top law enforcement officers of the Nation swear to enforce our Nation’s laws, but to whom do these two top law enforcement officers truly owe their loyalty, their fidelity, ultimately? Do they owe their loyalty, their fidelity to the President and to his Administration or do they owe their loyalty and fidelity to the U.S. Constitution and to the People of the United States?
Hillary Clinton, as Secretary of State in the Obama Administration, committed multiple illegal acts in clear defiance of and disdain for federal law. One can only wonder at the reluctance of the Department of Justice to render justice. The failure of top Justice Department Officials to bring to justice–on behalf of the American People, and in accordance with their duty under the U.S. Constitution–a corrupt Cabinet Level Officer, opens up these top Justice Department Officials to possible charges of criminal wrongdoing as well. These Justice Department Officials–the F.B.I. Director, James Comey, and the Attorney General, Loretta Lynch–have shown, through their failure to enforce Federal Statute, enacted by Congress, their own contempt for the law. They have condoned criminal conduct. They are, therefore, conceivably, guilty of criminal conduct themselves.
Moreover, as the two Departments—the Departments of State and Justice—are components of the Executive Branch of Government, presided over by the U.S. President, the President isn’t free of culpability in the Clinton scandal, either.
The President must surely have known of Hillary Clinton’s behavior.
After all Hillary Clinton’s use of personal email servers to handle classified documents wasn’t an atypical, “one off” event. She used private email servers to conduct official Government business, extensively–indeed, she used private email servers to conduct official Government business, exclusively–and she used private email servers to conduct official Government business over a lengthy period of time, namely, during her entire tenure as Secretary of State. Clinton’s use of private email servers was her typical way of conducting Government business. If the President did not know of Hillary Clinton’s illegal acts–which is difficult to believe– he is, nonetheless and at the very least, liable for negligent hiring. After all, he appointed Hillary Clinton to her post, as head of the Department of State. So, he bears some responsibility for her actions.
It is mind-boggling to consider that the Attorney General, Loretta Lynch, won’t indict Hillary Clinton. Substantial damning evidence against Clinton—evidence clearly warranting Clinton’s indictment on felony criminal charges cries out for Clinton’s indictment. It is equally mind-boggling to consider that, in light of his unprecedented statement to the American people on July 5, 2016—notably, one day after our National Holiday, marking our Nation’s independence from tyranny—the Director of the F.B.I., James B. Comey, would decide not to recommend indictment of Clinton, when his lengthy description of her crimes would strongly suggest he would do just that. He didn’t. Was he coerced? Americans may never know. We do know that Hillary Clinton should not escape justice. She must not escape justice.
Congress must act now precisely because the Executive Branch of Government won’t. High ranking Officials in the Executive Branch are themselves, apparently, too embroiled in Hillary Clinton’s corruption to put their house in order and mete out justice.
Only someone outside of Government, untainted by Government, and beyond the reach of and, therefore, beyond the influence of both the U.S. President and shadowy, powerful interests that are pulling the President’s strings can mete out justice now.
But what are the mechanics for meting out justice? Let’s take a look.
How Does The Ethics In Government Act Work?
“Under the Act, when the Attorney General receives specific information that high officials covered by the statute—including White House staff, Cabinet members, certain Justice Department officers, and the President and Vice President—have engaged in violations of federal criminal law other than petty offenses, he is allowed ninety days to complete a preliminary investigation. If he either ‘finds that the matter warrants further investigation or prosecution,’ or does not find ‘that there are no reasonable grounds to believe that further investigation or prosecution is warranted,’ then he must apply to a special division of the courts, consisting of a three-judge panel assigned by the Chief Justice for a two-year period, to appoint an independent counsel. “The Constitutionality of Independent Officers As Checks On Abuses of Executive Power,” 63 B.U.L. Rev. 59, by Charles Tiefer, Assistant United States Senate Legal Counsel.
“The independent counsel has a wide range of investigative powers, including conducting proceedings before grand juries, applying for judicial warrants, subpoenas, and immunity and other orders, and using the files, resources and personnel of the Justice Department. He must conform with an elaborate set of requirements for reporting to and advising Congress, including cooperating with congressional oversight committees, sending reports to Congress on his activities, and advising the House of Representatives of information that may constitute grounds for an impeachment. Independent counsels also frame and sign indictments, initiate and conduct prosecutions, and handle all aspects of federal cases. The Attorney General can remove independent counsels only for ‘good cause.’” Id.
We make several observations here.
- First, under The Ethics in Government Act of 1978, the Department of Justice—which includes the F.B.I.—does the preliminary work in investigating crime in high Government Office.
- Second, the Justice Department’s role is limited to making one of two determinations: either further investigation of criminal conduct is warranted, or it isn’t.
- Third, the threshold for determining whether further investigation or prosecution is warranted is set very low. This means that, if reasonable ground exists for extending the investigation, the need to appoint a special prosecutor kicks in.
- Fourth, the Justice Department has no discretion in this. Political influence and cronyism is negated. Once the Justice Department determines reasonable ground exists for extending an investigation, the Justice Department must relinquish its control over the investigation and prosecution of the case.
- Fifth, the Justice Department relinquishes its control by applying to a special division of the Courts. A three member panel of the special division will appoint a special prosecutor.
The special prosecutor then takes over investigation and prosecution from the Justice Department.
- Sixth, the Justice Department has 90 days to conduct a preliminary investigation. This precludes the Justice Department from sitting on a case.
- Seventh, in matters involving the investigation and prosecution of criminal misconduct of high level Executive Branch officials, the Ethics in Government Act hands over the administration of justice from the Executive Branch to the Legislative and Judicial Branches of Government.
So, why hasn’t the Justice Department made application to the Courts allowing the Judicial Branch of Government to appoint a special prosecutor? Might it be simply that the Judicial Branch will not, for some obscure reason, appoint a special prosecutor to look into Hillary Clinton’s conduct as Secretary of State and to look into the secret business dealings of the Bill and Hillary Clinton Foundation since, apparently, the Justice Department is unable to act? Or is it the case that the Attorney General cannot appoint a special prosecutor, had she wanted to?
The Department of Justice can’t take action to have a special prosecutor appointed because the Ethics in Government Act is no longer in effect.
Clearly, if the Ethics in Government Act were still in effect, Hillary Rodham Clinton’s bid for the White House would be at an end.
The F.B.I. Director, James B. Comey, determined—as is clear from his July 5, 2016 statement to the American people—that reasonable grounds for further criminal investigation of Clinton exists. Comey’s lame excuses–embarrassingly and, perhaps, deliberately lame excuses– for recommending to the Attorney General, Loretta Lynch, that no criminal charges be filed against Clinton, would be irrelevant. The Justice Department would have been compelled to apply to the Special Division of the Courts. The Special Division would appoint a special prosecutor to handle the case. The special prosecutor would take over the investigation entirely, and Clinton’s bid for the Democratic Party nomination for U.S. President would be effectively over.
Whither The Ethics In Government Act Of 1978?
“The Ethics in Government Act of 1978” had a sunset provision. The Act would expire after five years, unless Congress renewed it. Congress did renew the Act in 1982, once again in 1987, and then again in 1994. The Act was scheduled for renewal a fourth time, in June 30, 1999. But, this time Congress allowed the Act to die.
What changed between 1994 and 1999? Just this: The investigation, impeachment, and trial of William Jefferson Clinton. Congressional Democrats fought it. Clinton opposed it, Clinton’s Attorney General, appointed by Clinton, argued against it. The liberal American Bar Association attacked it. Even Kenneth Starr, the independent counsel, appointed by the Court to investigate whether the President and Hillary Clinton had violated federal statutes in connection with Madison Guaranty Savings & Loan Association, Whitewater Development Corporation, and Capital Management, assailed it.
Starr said, the Act, “tries to cram a fourth branch of government into our three-branch system.” That is a singularly odd remark for the independent counsel–the special prosecutor–to make–in essence sabotaging his own appointment as independent counsel to investigate the President. In any event, Kenneth Starr’s assertion was wrong. The appointment of a special prosecutor to investigate and prosecute crimes by high level Executive Branch Officials creates no Fourth Branch of Government, either literally or metaphorically.
The special prosecutor, appointed by the Judicial Branch, answers to the Legislative Branch of Government. This joint action by the Legislative and Judicial Branches of Government hold the Executive Branch to its duty to faithfully execute the laws of the Nation. The Ethics in Government Act compels integrity.
Without fanfare, just a few short months ago, Republicans in Congress attempted to resuscitate the Ethics in Government Act. Two House Republicans, Representative, Rick Allen, Republican from Georgia, and Michael Turner, Republican from Ohio introduced the “Independent Counsel Reauthorization Act of 2016,” on May 17, 2016. The “Independent Counsel Reauthorization Act of 2016,” essentially reauthorizes the original Ethics in Government Act of 1978, codified in 28 USCS Section 599, that had expired in 1999.
Where is that draft bill now? It languishes in Committee. It has virtually no chance of passage. No one in Congress talks about it. The mainstream media does not bring it up: “out of sight, out of mind.” But, why is that?
Can it be that all too many individuals in Government prefer to live with corruption? Perhaps so. But, when corruption is the cost of doing business in Government and when corruption is raised to a virtue, the destruction of our Bill of Rights and loss of our Free Republic cannot be far behind. That cost is much too high.
Curiously, the original Ethics in Government Act owed its demise to the Clintons. They would hardly wish to see it resurrected now, on the eve of 2016 Presidential election, when the two taste victory.
We look further into the legal intricacies of Judicial and Congressional use of a special prosecutor and to the machinations of the Clintons in upcoming articles.
Both Bill and Hillary Clinton are two of the most corrupt individuals ever to hold high Government Office. They repeatedly refer to their misconduct as simple, inadvertent “mistakes.” Hardly so.
For the Clinton’s had great responsibilities. They served at the highest or, otherwise, at a very high level of Government. One served as President of the United States. The other as a Cabinet Level Official. Their so-called mistakes have ripple effects, impacting the entire Country, having repercussions around the world. To call their duplicitous actions, “mistakes,” apparently serves, in their minds at least, to create the illusion their criminal actions do not have and did not have major disastrous consequences for Americans in particular and for the stability of the world, generally. They obviously take their actions cavalierly. But, no greater “mistake” can the American people make than to give these two a pass for their past “mistakes.” For, that mistake–the one the American People make–will land the two of them–Bill and Hillary Clinton–in the White House where they can engineer more “mistakes.”
But, this time, any mistakes the two of them–the two “Presidents” make–presiding over this Country as a dyarchy–will spell the end of our Constitution, the end of our free Republic, the end of a once proud and unique Sovereign Nation State.
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