Our dual-track sys­tem of jus­tice

Cecil Whig - - OPINION - Ruben Navarette Jr.

— One of Don­ald Trump’s fa­vorite words is “rigged.” From trade deals to the GOP nom­i­nat­ing process, ev­ery­thing is rigged.

And the pre­sump­tive Repub­li­can pres­i­den­tial nom­i­nee got the chance to use the “r-word” lib­er­ally last week when FBI Direc­tor James Comey put on a bipo­lar press brief­ing about the in­ves­ti­ga­tion into Hil­lary Clin­ton’s use of mul­ti­ple pri­vate email servers while act­ing as sec­re­tary of state.

“We have a rigged sys­tem, folks,” Trump told sup­port­ers in Raleigh, N.C., in­sist­ing that Clin­ton had been pro­tected by the po­lit­i­cal es­tab­lish­ment.

From Mex­i­can im­mi­grants to ban­ning Mus­lims, Trump is wrong about many things. But un­for­tu­nately, he is not wrong about the fact that Clin­ton should have faced charges and that pow­er­ful forces in­ter­vened to make sure that didn’t hap­pen.

Comey spent much of his pub­lic state­ment mak­ing a per­sua­sive case that Clin­ton had been “ex­tremely care­less in her han­dling of very sen­si­tive, highly clas­si­fied in­for­ma­tion.” He even made clear that the fed­eral statute at is­sue didn’t re­quire act­ing in­ten­tion­ally but in a “grossly neg­li­gent way.” And as le­gal ex­perts pointed out in re­cent days, when you look up the phrase “gross neg­li­gence” in a le­gal dic­tionary, you get some­thing along the lines of ... wait for it ... ex­treme care­less­ness. The ques­tion of whether to bring charges should have been an open-and-shut case.

Yet James Comey ev­i­dently failed to per­suade him­self.

Still, this is not about the FBI direc­tor. Nor is it even about Hil­lary Clin­ton’s guilt or in­no­cence, or what Bill Clin­ton said to At­tor­ney Gen­eral Loretta Lynch on that air­plane in Phoenix. We’re beyond all that.

I un­der­stand why the anti-Clin­ton forces are go­ing bal­lis­tic. Bill and Hil­lary Clin­ton are the Hou­di­nis of Amer­i­can pol­i­tics. Present them with a per­ilous and seem­ingly im­pos­si­ble sit­u­a­tion, and they’ll es­cape. So now that Hil­lary has skated on the email scan­dal, it’s tempt­ing to make the story about her.

Did Clin­ton break the law? Should Comey have come to a dif­fer­ent con­clu­sion, and rec­om­mended that she be charged — as the fed­eral statutes would seem to al­low — with gross neg­li­gence in the han­dling of del­i­cate ma­te­rial? Will the Clin­tons ever be held ac­count­able for any wrong­do­ing? These are the ques­tions that Amer­i­cans are ask­ing.

But what we should re­ally be fo­cused on is some­thing big­ger which is, in the fi­nal anal­y­sis, more im­por­tant than the amaz­ing Arkansas es­cape artists. Namely this: What are we go­ing to do about a crim­i­nal jus­tice sys­tem in this coun­try that is so deeply flawed that it’s made a mock­ery out of ideas that should be sa­cred. They in­clude the prin­ci­ple that no one is above the law and there is only one sys­tem of jus­tice for all peo­ple — rich or poor, pow­er­ful or pow­er­less.

Some­thing im­por­tant in our so­ci­ety is bro­ken, and it’s time to ac­knowl­edge that it’s out of or­der and fix it.

Rep. Trey Gowdy, R-S.C., gets it. At a House Over­sight Com­mit­tee hear­ing on Comey’s de­ci­sion not to rec­om­mend charges against Clin­ton, Gowdy ex­pertly grilled the FBI direc­tor. After ef­fec­tively mak­ing the point that — even if the statute had re­quired “in­tent” — such in­tent would not have been dif­fi­cult to prove in this case, given the lengths to which Clin­ton had gone to keep her emails se­cret, which in­cluded delet­ing with her lawyer’s help about 30,000 of them, the for­mer fed­eral pros­e­cu­tor ze­roed in on the real prob­lem. Or as he put it, his “real fear.”

What Gowdy wor­ries about, and what we should all worry about, is “this dou­ble-track jus­tice sys­tem that is rightly or wrongly per­ceived in this coun­try, that if you are a pri­vate in the Army and you email your­self clas­si­fied in­for­ma­tion, you will be kicked out. But if you are Hil­lary Clin­ton and you seek a pro­mo­tion to com­man­der in chief, you will not be.”

Gowdy ended his re­marks by chal­leng­ing Comey to make “the rea­son­able per­son” un­der­stand why the pre­sump­tive Demo­cratic pres­i­den­tial nom­i­nee “ap­pears to be treated dif­fer­ently than the rest of us would be.”

The rea­son is ugly. But it’s also ob­vi­ous. It’s be­cause there are al­ways other con­sid­er­a­tions that help de­ter­mine whether, for in­stance, in this case, charges should be brought about a per­son who could well be on the brink of be­ing elected pres­i­dent. Had that hap­pened here, we’d be look­ing at po­lit­i­cal up­heaval. Some peo­ple aren’t ready for that. So they opt to sim­ply pre­serve the sta­tus quo. It’s not jus­tice. But it’s the real world. Ruben Navarette Jr. is a syn­di­cated colum­nist from the Wash­ing­ton Post. His email is reuben@ruben­navarette.com.

SAN DIEGO

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