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Should Hillary Clinton Be Immune From Prosecution?

The Huffington Post The Huffington Post 12/10/2015 Kevin Sali
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As the investigation into Hillary Clinton's private email server progresses, commentators continue to debate whether she could potentially be subject to criminal prosecution. Even assuming the investigation ends up disclosing evidence that could support such a prosecution, we'd still face the question of whether she -- or any other similarly situated government official -- should be prosecuted.
This is usually the starting point for a vigorous discussion over whether Clinton in fact "broke the law." To me, that's the wrong question. In many areas of federal criminal law -- particularly involving white-collar, political and public corruption offenses -- there are no clear sets of rules constituting "the law," and no obvious way to determine whether that "law" has been "broken." In these areas, the "law" is often defined broadly and vaguely, leaving prosecutors, judges and jurors an enormous amount of discretion as to what constitutes "breaking" it.
For example, several years ago, I defended a man who had sent funds to an Iranian charity. The government argued that under the applicable regulations a license was required for such transfers, and my client hadn't obtained one. We read the regulations differently, and didn't believe any license was required under the circumstances. We weren't the only ones who thought so -- our research revealed that a few years before our client's transfers, the head of the federal agency overseeing such transfers had written an official letter stating his view that no license was needed. The prosecutors in our case nonetheless sought a substantial prison term for our client, and this approach isn't uncommon; federal prosecutors routinely bring serious charges based on highly debatable legal interpretations.
So if we're comparing Clinton's case to others, the question isn't whether in some indisputable, objective sense she "broke the law." It's whether the strength of the factual and legal case against her passes the threshold that prosecutors typically use in deciding whether to bring charges. From what I've seen, it does -- at least, it meets the standard applied with respect to people the prosecutors want to charge.
If so, should she be prosecuted? Should other high-level officials in similar situations also be charged? In my opinion, prosecutors and other officials should use a lot of restraint in considering such charges, because of the immense possibility that the charging and prosecuting power could be abused.
The criminal law is a terrifying, ruthless tool. I've spent most of my career defending people accused of crimes, and over the years I've had the opportunity to see the system through my clients' eyes. Even being informed that you're the subject of a criminal investigation can be devastating -- to your reputation, emotional health, career, relationships and finances -- to say nothing of what happens if you're actually charged or convicted.
Few people actually enjoy going through any part of the legal system, but the criminal system is uniquely harrowing. The law recognizes this in various ways. For example, in many jurisdictions it's considered unethical for a lawyer to threaten to press criminal charges against an adversary in order to gain an advantage in a civil case; it's understood that invoking the specter of a criminal case raises the stakes to an entirely new level.
Again, particularly in the federal system, prosecutors have tremendous discretion in deciding who should be subjected to this process. Add into the mix the fact that politics by its nature tends to provoke intense animosity, and occasionally even pathological hatred, between people on opposing sides of issues or campaigns.
It's not hard to see how this combination of vague laws, high stakes, vast discretion and strong emotions could end badly -- particularly when prosecutorial decisions are being made by the subjects' political opponents. In earlier centuries, those assuming power would often take swift actions against those affiliated with their rivals, whether out of spite or out of concerns that the rivals posed threats to their power. Thankfully, things aren't that bad today; it's unlikely, for example, that whoever wins the 2016 election will have Sasha and Malia Obama locked up inside the Washington Monument. But the same vindictive instincts that motivated kings and queens in former days are still inside us, and we need to be careful that they don't result in inappropriate uses of the formidable prosecutorial power.
I've occasionally thought that something like a formal immunity rule might be appropriate, at least for high-ranking officials. The cost, of course, would be that such officials could escape criminal liability even for clear-cut offenses; they would be in that sense "above the law." On the other hand, at present people who enter the political system are arguably below the law, in that by inevitably invoking the ire of those who are in power or may later be, they're exposing themselves to enhanced risks of prosecution. The benefit of some type of immunity would be that officials could perform their often-controversial work without fear of politically inspired prosecutions down the road.
Ultimately, though, an actual immunity rule would probably go too far. Such rules by their nature have to be far-reaching and over inclusive. Even I couldn't advocate a system in which officials could get away scot-free after being caught on video stabbing subordinates or dealing heroin out of their offices, and it would probably be impracticable to set up a bright-line rule that would carve out such cases while still serving a useful function.
But a culture of presumed immunity might work. If it could be generally understood by people on both sides of the aisle that criminal prosecutions of high-ranking officials or former officials would be exceptionally rare, and instigated only in truly clear-cut cases, that would go a long way towards eliminating the more unseemly political prosecutions.
Of course, this would have to be a truly party-neutral effort. The standard applied to the Hillary Clinton investigation would have to apply equally to the widely ridiculed Rick Perry indictment, or to the criminal investigation of the authors of the Bush-administration "torture memos." We might commit to asking ourselves, whenever a political figure might be the subject of a criminal investigation, if we would support charges if the identical conduct were engaged in by a politician we liked, admired and supported.
This approach wouldn't entirely solve the problem of inappropriately politicized prosecutions. Such "cultures" are inherently unenforceable, and human nature being what it is, we could expect routine statements that "this case is truly beyond the pale and needs to be prosecuted." Still, it would be a good start.

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