Trashing the Order of Law

 

Even Worse Than Hillary Clinton’s Emails

The civil service was missing in action. We learned about the emails from a hacker.

William McGurn

The Wall Street Journal

Sept. 5, 2016

    Forget the new dump of Hillary Clinton emails. Forget the phony claims that the missing communications were all about wedding plans and yoga routines. Forget, too, the many requests from Doug Band in which the Clinton Foundation honcho hoped his quos (hefty donations to the Clinton Foundation) would translate into quids (e.g., special access to the secretary).

    Forget them all. The most disturbing aspect about the FBI dump may not be fresh evidence of another Clinton lie. The most disturbing thing about Mrs. Clinton’s continuing email drama may be where she’s telling the truth.

Or at least a half-truth. Mrs. Clinton told the FBI it was “common knowledge” at State that she used private email. Agents further quote her as saying she “could not recall anyone raising concerns with her regarding the sensitivity of the information she received at her email address.”

However unseemly the cashing in of the Clinton family, whatever the trampling of the ethics accord the Clinton Foundation had signed with the White House, even apart from the walking conflicts-of-interests that were Huma Abedin and Cheryl Mills, the much larger stink here is this: Mrs. Clinton was allowed to spend her four years as secretary of state off the grid.

It isn’t so much that Mrs. Clinton set up a personal server so she would not be accountable the way normal political appointees are held accountable. It’s that no one in government stopped her. The inspector general’s report notes that when two IT officers expressed their concern in 2010 that her private email system meant federal records were not being preserved, they were told “never to speak of the Secretary’s personal email system again.”

As a result, when the American people finally learned about Mrs. Clinton’s use of private email for public business, it wasn’t because of a functioning civil service. It was because of a hacker.

Mrs. Clinton says officials at State never told her what she was doing wasn’t allowed. That isn’t quite true. It’s more accurate to say she never asked the people who would have the answers to these questions. The IG report confirms it was made clear to State staffers that she did not want the questions asked.

It gets worse. Even today her former department is still resisting efforts to make public the emails she tried to hide. Groups such as Judicial Watch have done yeoman’s work in forcing the emails into the sunlight—but they have also had to get court orders to pry them out of an obstructionist State Department.

It’s a disturbing pattern, and unfortunately it’s not limited to State. There have been similar questions about the integrity and professionalism of the IRS ever since the American people learned in 2013 that it was unfairly targeting conservative groups seeking tax-exempt status.

Three years, many congressional hearings and disappearing hard drives later, there is still no evidence the IRS has ended the practice. Just last month, a three-judge panel of the D.C. Circuit Court of Appeals described the IRS approach to its targets this way: “You’re alright for now, but there may be another shoe falling.” This follows on a March ruling from the Sixth Circuit Court of Appeals, which blasted the IRS for refusing to produce a list of those it had targeted—as well as for its bad faith in defending itself by invoking a rule meant to “protect taxpayers from the IRS, not the IRS from taxpayers.”

Originally the speculation was that the IRS effort had been orchestrated by the Obama administration. As the Journal’s James Taranto noted at the time, the IRS scandal is worse if it was not directed by the White House. “If it ‘went rogue’ against the Constitution and in support of the party in power,” he wrote, “then we are dealing with a cancer on the federal government.”

Now consider the FBI. Its director is appointed to a 10-year term precisely to remove him from political pressures.

In our criminal-justice system, the bureau’s job is to investigate, while the decision to indict belongs to the Justice Department. In other words, whether to indict Mrs. Clinton was Attorney General Loretta Lynch’s responsibility, and she would have to take the heat whichever way she decided.

Until FBI director Jim Comey intervened with a press conference in which he announced he was recommending against indictment. By going public in a way even he admitted was “unusual,” Mr. Comey effectively pre-empted the Justice Department and any hope for accountability. That Mr. Comey’s decision let Ms. Lynch off the hook after her private meeting with Bill Clinton only makes it more disgraceful.

Welcome to modern Washington, just two months away from a presidential election. It’s possible, of course, that the people who believe the system is rigged and that their government has taken sides against them are wrong.

But the most disquieting possibility is that it isn’t crazy to think they might be right.

mcgurn@wsj.com.

A Liberal ‘Gets’ Religion

A U.S. Civil Rights Commission report on religious liberty is so bad, it’s good.

William McGurn

The Wall Street Journal

Sept. 12, 2016

    Martin Castro has just performed an enormous public service for his country. But it’s not the one he thinks.

    Mr. Castro is chairman of the U.S. Commission on Civil Rights, a venerable institution dating to 1957 that has helped America kill Jim Crow and make good on our founding promises. An Obama appointee, Mr. Castro last Wednesday made public a report on nondiscrimination protections—increasingly about gender preference and sexual orientation—that in its crassness rivals Hillary Clinton’s belittling of Donald Trump supporters.

Here’s Mrs. Clinton: “You know, to just be grossly generalistic, you could put half of Trump’s supporters into what I call the basket of deplorables. Right? The racist, sexist, homophobic, xenophobic, Islamophobic—you name it.”

Here’s Mr. Castro: “The phrases ‘religious liberty’ and ‘religious freedom’ will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy or any form of intolerance.”

Mr. Castro’s is the prevailing view among progressives. Barack Obama alluded to it when he derided small-town Americans bitterly clinging to guns or religion (i.e., the Second and First Amendments). Ditto for Mrs. Clinton, who in a remark about reproductive rights declared that “deep-seated cultural codes, religious beliefs and structural biases have to be changed.”

Mr. Castro’s contribution, by contrast, is so bad it’s good. For he confirms that the progressive argument is mostly about insulting Americans with differing views.

The commission report is called “Peaceful Coexistence: Reconciling nondiscrimination principles with civil liberties.” Its top finding is this: “Civil rights protections ensuring nondiscrimination, as embodied in the Constitution, laws, and policies, are of pre-eminent importance in American jurisprudence.”

Translation: Nuisances including the First Amendment’s “free exercise” of religion guarantee take a back seat to the rapidly multiplying non-discrimination causes such as the “right” to coerce any baker you want into baking the cake you want for your same-sex wedding.

In her own submission to the report, the commission’s Gail Heriot pinpoints the flaw in the finding. A University of San Diego law professor, Ms. Heriot says she could easily imagine a case for Mr. Castro’s position. But instead of an argument, she says, the commission offers a decree.

“By starting with an assertion that antidiscrimination laws are ‘pre-eminent,’ she writes, “the Commission’s analysis essentially begins with its conclusion. Why should anyone accept it? The Commission said so.”

The reasonableness of Ms. Heriot’s contribution almost makes this awful report worth its price. Here is a civil rights commissioner who takes the clash between nondiscrimination and religion seriously, who appreciates that these clashes are the result of government going places it never went before—and who recognizes that the questions raised are more complicated than Mr. Castro’s good guys versus bad guys caricature.

Ms. Heriot also recognizes the public-service aspect of publishing the chairman’s prejudice: Though she first thought of asking Chairman Castro to remove his statement, she writes, on further reflection she concluded that it “might be better for Christians, people of faith generally and advocates of limited government to know and understand where they stand with him.”

Indeed we are better off. The solitary virtue of Mr. Castro’s presentation is that he makes not the least effort to hide the ugly bits. These lead to a nation where the mediating institutions that stand between the citizen and government (churches, schools, private associations) are stripped of influence, and the political system no longer decides divisive issues through its elected representatives.

In Mr. Castro’s world, those who dissent from the prevailing pieties are deemed unfit for the public square . . . the judgment of federal agencies substitutes for Congress . . . and Justice Anthony Kennedy is free to take his own private mystery of the universe and impose it on the nation by unearthing constitutional rights unmentioned in the Constitution at the expense of the rights that are.

What does it mean for the election? Plainly Mrs. Clinton stands with Mr. Castro on this ahistoric and unconstitutional reading of rights. Even poor Gary Johnson, who embarrassed himself on television when he seemed to have no idea what Aleppo was, has come out against religious liberty—suggesting he understands even less about libertarianism than he does about Syria.

And Mr. Trump? No one would ever confuse Donald Trump with Reinhold Niebuhr. Yet even with his ambiguous stands on where gay rights begin and end, Mr. Trump seems unlikely to people his administration with Martin Castros bent on coercion.

In the meantime, we’re left with this: The melancholy spectacle of the U.S. Commission on Civil Rights issuing a report trashing the first civil right enumerated in the Bill of Rights.

mcgurn@wsj.com.