Equal justice under the law, right?

Andrew McCarthy writes today in National Review,

...As we contended in rebuttal on Thursday, the Times’ facts are selective and its narrative theme of disparate treatment is hogwash: Clinton’s bid was saved, not destroyed, by Obama’s law-enforcement agencies, which tanked a criminal case on which she should have been indicted. And the hush-hush approach taken to the counterintelligence case against Donald Trump was not intended to protect the Republican candidate; it was intended to protect the Obama administration from the specter of a Watergate-level scandal had its spying on the opposition party’s presidential campaign been revealed.

...It has now been confirmed that the Trump campaign was subjected to spying tactics under counterintelligence law — FISA surveillance, national-security letters, and covert intelligence operatives who work with the CIA and allied intelligence services. It made no difference, apparently, that there was an ongoing election campaign, which the FBI is supposed to avoid affecting; nor did it matter that the spy targets were American citizens, as to whom there is supposed to be evidence of purposeful, clandestine, criminal activity on behalf of a foreign power before counterintelligence powers are invoked.

...In Investigations 101, using foreign-intelligence authorities to spy on Americans is extraordinary, while taking custody of essential physical evidence is basic. By the way, the government’s failure to ensure the evidentiary integrity of the DNC server by taking possession of it and performing its own rigorous testing on it makes it practically impossible to prosecute anyone for “colluding” in Russia’s cyber-espionage. It’s tough to prove that anyone conspired in something unless you can prove beyond a reasonable doubt that the something actually happened the way you say it happened. To do that in a courtroom, you need evidence — a confident probability analysis by your intelligence agencies won’t do.

...Notwithstanding that Mrs. Clinton’s actions were intentional and willful, the Espionage Act does not require proof of that mental state. Despite considerable evidence that she obstructed investigations, it’s not necessary to prove that either. Nor to establish disloyalty or any intent to harm the United States. To avoid indicting Mrs. Clinton, the FBI and Justice Department ignored the statute that has been on the books for a century and substituted an impossible-to-prove statute of their imagination.

...Incidentally, in the ambush interview, Flynn, without counsel and apparently unaware that he was being questioned as a suspect, was grilled about what was said in a conversation with Kislyak. There was no intelligence need to do this because the FBI had a recording of the conversation. The agents who questioned Flynn, including counterespionage specialist Peter Strzok, determined that Flynn did not lie to them.

He was later prosecuted by the special counsel for lying to the FBI.

Patently, this was a false statement: Mrs. Clinton, who was in the Senate for eight years, was indoctrinated in classified-information practice on becoming secretary of state, a position in which classified documents abound. She signed an acknowledgment that she understood her obligations and had read the relevant executive orders on classification — the main one had been issued by her husband. (C), which stands for confidential, the lowest level of classification, is a ubiquitous marking in classified documents, well known to officials with security clearances. But Mrs. Clinton had falsely told the public she had never sent or received any documents “marked classified,” so she needed to pretend that she didn’t know what the classified markings meant.

In stark contrast, the Virginia home of Paul Manafort, Trump’s former campaign chairman, was raided by the FBI in the predawn hours. Special Counsel Mueller’s prosecutors convinced a judge to authorize a no-knock entry — essentially, a break-in — prior to 6 a.m. Agents entered with guns drawn while Manafort and his wife were in bed asleep. The couple was ordered out of bed and detained, while agents searched their home and seized voluminous documents. At the time, Manafort was voluntarily cooperating with congressional investigators, had provided testimony and documents to one committee the day before, and was scheduled to do the same with a different committee later on the day of the raid. Manafort was also represented by prominent Washington defense counsel, who would willingly have accepted service of a subpoena and produced the materials sought by the special counsel.

But the indulgence of attorney–client claims to impede investigators was especially egregious in the Clinton-emails case because it was a flagrant violation of professional rules and federal law. Attorneys Cheryl Mills and Heather Samuelson worked for Clinton at the State Department and were deeply involved in determining which emails Clinton surrendered to the State Department and which she destroyed. Canons of professional ethics forbid a lawyer from taking on representation of a client if the lawyer is an actor in the facts under investigation. They bar a lawyer who is a former government official from representing clients in matters in which the lawyer was involved while working for the government. Moreover, it is a federal crime (under Section 207 of the penal code) for a former government official to attempt to influence the government on behalf of another person in a matter in which the former official was heavily involved while working for the government.

Read more here.