Seriousness of the Charges Against Hillary Clinton

By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

On the immigration/refugee front, the Associated Press reported the following:

WASHINGTON (AP) — The U.S. government has mistakenly granted citizenship to at least 858 immigrants from countries of concern to national security or with high rates of immigration fraud who had pending deportation orders, according to an internal Homeland Security audit released Monday.

The headline at Drudge Report for that link read:

Feds Mistakenly Grant Citizenship to 800 Immigrants with Security Concerns...

Remember, Rush Limbaugh calls them "Undocumented Democrats."

Think about the headline from Drudge for just a moment.  A serious concern has emerged about whether or not the people we are allowing into this country are security risks.  To protect ourselves employees in government positions have to pass rigorous background checks.  From the Post Office to Office Data Entry at a city or county level, background checks are applied to make sure the people in those positions can be trusted.  Heck, in California, Governor Jerry Brown even signed a bill requiring background checks to purchase ammunition.  Yet, the politicians are not making sure that the people who enter this country are even trustworthy the slightest bit (much less disease free).  In fact, the enemy is crossing the border with ease (Islamic terrorists have been proven to be mixed into illegal alien and refugee populations entering Europe, and the United States).  Why would the politicians allow such thing?

Could it have something to do with that fact that a large portion of those politicians couldn't even pass a background check to be a government employee themselves?  That they are also a part of the enemy within?

Trevor Loudon's film The Enemies Within asks, "Could your congressman pass an FBI security check?"

The sad answer is, "probably not!"  In fact, according to Loudon, a hundred members of the House of Representatives, and about twenty Senators, have connections to the Democratic Socialists of America, Communist Party USA, the Muslim Brotherhood, or other organizations considered socialist, communist, or an Islamic terrorist organization. . . and in some cases our representatives belong to, or have connections to, all of the above groups.

What makes it even worse is that the Democrats who have been serving as President, and running for President of the United States couldn't even pass a security check.  In the case of Hillary Clinton, she has a criminal record that has been shoved under the rug, accompanied by a justice department, FBI and media who are unwilling to pursue her illegal activities, and she has a record of corruption that wouldn't even allow her to be a maintenance worker in a government building.

A recent email floating around, one that I almost labeled "email of the week," questions Hillary's qualifications for President of the United States.

What is even worse is the liberal left response to that email, and the shocking truth about Hillary's qualifications and how she technically is qualified because of the way the system is designed. . .

The email reads:

Apparently, the FBI forgot to visit the Cornell Law Library. Word for word from the Cornell Law Library Former United States Attorney General Michael Mukasey tells MSNBC that not only is Hillary Clinton's private email server illegal, it "disqualifies" her from holding any federal office. Very specifically points to one federal law, Title 18. Section 2071.

For those of us who do not have United States Code committed to memory, here's what it says:

(a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.

(b) Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term “office” does not include the office held by any person as a retired officer of the Armed Forces of the United States.

Yes, it explicitly states "shall forfeit his office and be disqualified from holding any office under the United States."

General Michael Mukasey did indeed say what he is alleged as saying in the email, and the law does say exactly what is provided by the email. . . but, according to liberal left scholars, she has never been technically found guilty, therefore she's fine.  Besides, one points out, the constitutional provisions provided in the U.S. Constitution does not technically disqualify someone with a criminal record - so even if she was found guilty of all these things, is the insinuation, Hillary Clinton would still be eligible to be President of the United States.

According to Snopes (and yes, I know they are a left-leaning website):

Eugene Volokh, a professor at the University of California, Los Angeles School of Law (and a legal analyst for the Washington Post) ended an August 2015 column on the controversy by opining that disqualifying a person from holding the office of President over a criminal sentence was possibly unconstitutional, and that the issue was moot in Clinton's case because even if she were found guilty of such an offense, she would be effectively disqualified from office in the court of public opinion rather than in a court of law:

[T]he Constitution does expressly allow Congress to make disqualification from future office part of the sentence in impeachment proceedings — but has no such provision as to criminal sentences.

Of course, all this is likely practically moot, since if Hillary Clinton is guilty of violating the law, and is convicted for violating the law, such a trial would be a political disqualifier even if not a legal disqualifier; but I take it that the legal disqualification point might itself have some political force even if no trial takes place, and I thought it would be worth noting that the legal disqualification is likely unconstitutional.

Volokh largely deferred to an assessment by former Rutgers Law School Prof. Seth Barrett Tillman, who countered Mukasey's initial statement by expanding on the "unconstitutional" aspect raised by Volokh:

Michael B. Mukasey, a former Attorney General of the United States (and former Chief Judge of the United States District Court for the Southern District of New York), has stated that if former Secretary of State (and former Senator) Hillary Clinton is convicted under 18 U.S.C. § 2071,[1] then she is disqualified from holding the presidency ... Mukasey’s and Cause of Action’s position is fundamentally misconceived; indeed, neither puts forward any authority for the position that Section 2071 or any other federal statute creates or could create a disqualification in regard to any elected federal position, including the presidency.

It is widely accepted that the Supreme Court's decisions in Powell v. McCormack and U.S. Term Limits, Inc. v. Thornton have come to stand for the proposition that neither Congress nor the States can add to the express textual qualifications for House and Senate seats in Article I.
Importantly, the rationale of Powell and U.S. Term Limits — i.e., the primacy of the written Constitution’s express provisions setting fixed textual qualifications — equally applies to the qualifications for the presidency (and vice presidency) in Article II. Indeed, this extension of Powell and U.S. Term Limits appears uncontroversial. For example, Chief Judge Posner opined:

The democratic presumption is that any adult member of the polity ... is eligible to run for office ... The requirement in the U.S. Constitution that the President be at least 35 years old and Senators at least 30 is unusual and reflects the felt importance of mature judgment to the effective discharge of the duties of these important offices; nor, as the cases we have just cited hold, may Congress or the states supplement these requirements.

Federal district courts, including those outside of Chief Judge Posner’s Seventh Circuit, have taken a similar stance. So has persuasive scholarly authority.

As a matter of constitutional structure, the case for exclusivity in regard to the Constitution’s express textual qualifications for the presidency is stronger than the coordinate case for exclusivity in regard to qualifications for House and Senate seats. The power to judge members’ qualifications is expressly and unambiguously committed to each house of Congress, but no such express power is unambiguously committed to Congress in regard to adjudicating a president’s (or presidential candidate’s or president-elect’s) qualifications. It would seem to follow that if Congress has no power to add to the standing qualifications of its own members, it cannot add to the standing qualifications for the other elected constitutional positions, i.e., the President and Vice President. Any other result risks congressional aggrandizement at the expense of the presidency; any other result risks Congress’s manipulating qualifications for the presidency so that Congress chooses the President, rather than the People of the United States.

In short, Tillman (and Volokh) held that the qualifications stipulated in the Constitution regarding eligibility for the office of President (i.e., having reached the age of 35 and having lived in the United States for 14 years) cannot be modified by Congress through the passage of laws, only by amending the Constitution itself.

Prior to the August 2015 controversy, Prof. Matthew Franck had expressed much the same viewpoint in the National Review's "Bench Memos" column. Addressing a prior version of the claim made in March 2015 by Fox News anchor Megyn Kelly, Franck maintained that a statute such as Section 2071 did not have the judicial weight to override the Constitution and create additional disqualifying criteria:

At first blush it appears that Kelly has it right. The presidency is an “office under the United States,” as are all executive and judicial branch offices. (Members of either house of Congress are consistently not called “officers” in the Constitution, or, so far as I know, in any federal statutes.)

But a mere statute cannot legally disqualify a person from eligibility to the presidency, if he or she possesses the constitutional qualifications. Anyone who is a native-born citizen, 35 or older, who has been 14 years a resident of the country, and who receives a majority of the electoral votes cast for president as certified by the joint session of Congress held to count the ballots (or in the event of no such majority, the one who wins a majority of the states in the contingency balloting of the House), shall be sworn in as president. That is all in the Constitution, and it is not possible for Congress to add the further qualification “and who has not been convicted of felony X.”

No one in Congress could have thought that such a provision applied to the president, who can lose his office against his will only by being impeached by the House and convicted, after an impeachment trial, by the Senate. Even a conviction of a sitting president on a federal felony charge would not accomplish his removal from office. It follows that a statute that could not result in the removal of a sitting president does not contemplate the disqualification of any person to become president.

The alternative ... leads us into all manner of absurdities, in which the Congress might add further disabilities to the constitutional ones that limit eligibility for the presidency. What other disqualifications, either for offenses against the law or for other reasons, might be added? Lack of military service? Lack of a college degree? ... A statute such as 18 U.S.C. §2071 can reasonably be read as controlling service in any office Congress has created by statute and whose process of appointment or election is not specified by the Constitution. It might then not be read as controlling appointment to an Article III judgeship at any level, but it could plausibly control appointment to any executive branch office, even at the Cabinet level. Those would be interesting interpretive questions. What is not so interesting, because the answer is so obvious, is whether this statute has any effect whatsoever on eligibility to be president. It doesn’t, because it can’t.

Mukasey himself eventually concurred with Tillman and others that his original comment regarding Title 18, Section 2071 with respect to Hillary Clinton's eligibility was off the mark. Volokh appended his column with the following excerpt from a e-mail sent to him by Mukasey:

[UPDATE: Michael Mukasey sent a very gracious e-mail yesterday evening to say that, “on reflection, … Professor Tillman’s [analysis] is spot on, and mine was mistaken…. The disqualification provision in Section 2071 may be a measure of how seriously Congress took the violation in question, and how seriously we should take it, but that’s all it is.”]

Here's what bothers me about all of that.  Hillary Clinton, they are saying, is technically a corrupt individual who did in fact use her own server when she shouldn't have, was wrong in her handling of confidential material, and should be found guilty of the criminality of what she did. . . but because technically she hasn't been found guilty of such things, and even if she was, the Constitution doesn't disqualify her for criminal activity, she's fine and dandy to run for President.  Her corrupt character, and lack of any integrity, means nothing to them.

Remember, in the case of Republicans, in the eyes of the liberal left a "right-winger" can lose their position in government based on only accusations.  The Democrats believe the following quote when it comes to the GOP:

“The nature of the evidence is irrelevant; it's the seriousness of the charge that matters.” Tom Foley, Democrat, Former Speaker of the House.

We have seen time and time again mere accusations ruin the political careers of Republicans. . . yet, it seems when it comes to Democrats, criminal activity is a step up - even when it is blatant and obvious.

While Hillary Clinton's actions would be prosecuted as treasonous activity if she was a member of the Republican Party, as a Democrat it is to be ignored - and anyone who makes a big deal about it is guilty of fearmongering, is a sexist, or worse. 

-- Political Pistachio Conservative News and Commentary