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July 5, 2016 - Rush Limbaugh Program
37:21
July 5, 2016, Tuesday, Hour #2
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And greetings to you, music lovers, thrill seekers, conversationalists all across the fruited plain, Rush Limbaugh, executing a signed host duties flawlessly.
Zero mistakes.
Great to have you here.
Telephone number, if you want to be on the program 800 282-2882, and the email address L Rushbow at EIB net.com.
So, ladies and gentlemen, I have uh I've been going back and forth in this whole business of intent, and it just so happens I found at the top of the hour break my buddy Andy McCarthy at National Review Online, who everybody who listens to this program knows,
a former prosecutor for the uh uh Southern District of New York, U.S. Attorney's Office, Southern District of Manhattan office, has just posted at National Review Online, FBI rewrites federal law to let Hillary Clinton off the hook.
And let me just give you some excerpts of this.
There is no way of getting around that.
By the way, hang on, because since the legal aspect is one thing, but the the political aspect of this is by no means over, and if Chris Salisa at the Washington Post is any kind of a canary in the mine, then Mrs. Clinton is by no means out of the woods here.
And I don't mean to be engaging in false optimism here.
Uh I know that uh a lot of people are dispirited and depressed, even though I warned everybody that we were being played by all this stuff that happened last week.
I mean, they want you dispirited.
They want you down, they want you giving up.
They want you thinking you can't get them.
Not just the Clintons, but Obama anybody.
They want you thinking that you are powerless to stop them, and they tease you, and they make you think that you're on the verge of getting them, and then the shoe drops and there's nothing to see, and nothing there, and everybody gets depressed and goes away.
And they've done this enough that they've had a, I think, a successful uh run at turning people off of politics and dispiriting them.
Don't let that happen to you folks.
It's woman cannot win this election coming up.
This just cannot happen.
So if if you're momentarily spent, if you're momentarily depressed, if you're throwing up your hands in frustration, go ahead and experience it for a while, but come back.
Because this is just getting warmed up.
This is just step one.
Somebody might be able to make the case that politically this is more advantageous than having her be indicted.
Now, in terms of rule of law, it would have been best if the law had trumped here, but it didn't.
So uh there may be some some advantageous results here politically.
We'll get into that uh today, and as uh the days and weeks unfold before us.
But back to McCarthy here.
There's no way getting around this.
According to director James Comey, and he discloses that uh Comey's a former colleague and a longtime friend.
Andy knows Comey.
Andy knows Pat Fitzgerald.
Uh, and this to get it all on the table, uh, Andy McCarthy and Pat Fitzgerald together tried to blind shake.
I mean, they they go back a long way.
So there is uh personal knowledge uh as as well here.
Victoria Tenzing, by the way, who's the wife of Joe de Genova, who was the first to say the FBI had the goods.
Remember that way back a couple, three, four months ago.
The Geneva came out and said, He's been talking to people the FBI, they've got evidence, and if she's not indicted, you're gonna have so many people the FBI down on the jumps are going to resign.
Remember that?
I do.
And I thought at the time, well, that's a big stretch.
I mean, that's that's to say that now as uh there must be something to it.
If you're gonna be a public commentator, go out on a limb with something like that, that they've got the goods on her, that it's open shut, slam dunk, and that if there is not an indictment, that a lot of investigators, the FBI are gonna throw their hands up and quit.
That's what the Genova said.
Now, I don't recall if he if he said if Comey doesn't recommend charges, they would uh he might have said that as well.
I'll have to go back and check.
But his wife is Victoria Tenzing.
And uh what was this?
A tweet.
Oh, it's an email.
She said, Comey brought in Fitzgerald for the scooter investigation, and they're friends as they were prosecutors in New York together.
So she's making the case that Comey and Fitzgerald are good buddies, and both were said to be clean and pure as the wind-driven snow above the law.
You can totally trust them straight shooters and all that.
That's Victoria Tensey.
I'm just reporting.
All kinds of stuff's rolling in here, folks.
There are a lot of people.
There are a lot of people, like DeGenova.
They threw it all out there.
They pretty much told us that the goods are there.
The FBI got the evidence.
And if there's no indictment, well, you're going to see mass resignation and so forth.
So point is a lot of people, despite what I warned them, a lot of people thought that today was going to bring the announcement of an indictment or recommendation that charges be brought.
So Andy here disclosing that Comey's a buddy, former colleague and a longtime friend, Hillary Clinton checked every box.
There's no way getting around this.
And according to what Comey said, Hillary Clinton checked every box required for a felony violation of Section 793 of the Federal Penal Code, Title 18.
With lawful access to highly classified information, she acted with gross negligence in removing and causing it to be removed from its proper place of custody, and she transmitted it and caused it to be transmitted to others not authorized to have it in patent violation of her trust.
Yes, amen.
Who cares about intent?
What did she actually do?
I mean, that's the common sense reaction here.
You know, I heard Tuban on C and it, well, the reason she got off the hook here is, according to the FBI director, that she didn't intend to do anything.
Well, when does that start mattering?
This is my intelligence guided by experience, rearing it so when does that start mattering all of a sudden?
I had no idea that even at that moment McCarthy was preparing his peace.
Director Comey even conceded in his presser today that former Secretary Clinton was extremely careless and strongly suggested that her recklessness very likely led to communications of her own and those she corresponded with being intercepted by foreign intelligence services.
Yet Comey recommended against prosecution of the law violations that he clearly found on the ground that there was no intent to harm the U.S. You go back, we've got the soundbites coming up too of Comey.
When you listen to that from the beginning, you think, my gosh.
It sounded serious when he started up.
Did you hear it all from the beginning of there, Mr. Sturdley?
It sounded serious.
I mean, my first reaction was, my gosh, I was wrong.
He's he's got the goods and is going to proceed to lay that.
And then as it went on, that clearly was not what was going to happen.
In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require.
The added intent element, moreover, makes no sense.
The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets.
When they fail to carry out that obligation due to gross negligence, they're guilty of serious wrongdoing.
The lack of intent to harm the country is irrelevant.
People never intend the bad things that happen due to gross negligence.
Now, McCarthy further writes, I would point out, moreover, that there are other statutes that criminalize unlawfully removing and transmitting highly classified information with intent to harm the U.S., being not guilty and indeed not even accused of Offense B does not absolve a person of guilt on offense A, which she has committed.
It is a common tactic of defense lawyers in criminal trials to set up a straw man for the jury, a crime the defendant has not committed.
The idea is that by knocking down a crime the prosecution does not allege and cannot prove, the defense may confuse the jury into believing the defendant is not guilty of the crime charged.
Judges generally don't allow such sleight of hand because innocence on an uncharged crime is irrelevant to the consideration of the crimes that actually have been charged.
So it seems to me that this is what the FBI has done today.
It has told the public that because Mrs. Clinton did not have intent to harm the U.S., we should not prosecute her on a felony that does not require proof of intent to harm the U.S. In other words, there are two statutes at play here.
One requires intent, the other does not.
The statute that does not require intent is enough.
But they're not using it.
They're relying on some other statute that does require intent, and they're adding that to the statute that doesn't, in a sense, as a means of protecting her.
That's what the FBI's done today.
It has told the public that because Mrs. Clinton did not have intent to harm the U.S., we should not prosecute her on a felony that does not require proof of intent to harm the U.S. Meanwhile, although there may have been profound harm to national security caused by her grossly negligent mishandling of classified information, we've decided she shouldn't be prosecuted for grossly negligent mishandling of classified information.
McCarthy writes here, I think highly of Jim Comey personally and professionally, but this makes no sense to me.
Finally, I was especially unpersuaded by Director Comey's claim that no reasonable prosecutor would bring a case based on the evidence uncovered by the FBI.
To my mind, a reasonable prosecutor would ask, well, why did Congress criminalize the mishandling of classified information through gross negligence?
The answer obviously is to prevent harm to national security.
So then the reasonable prosecutor asks, well, was the statute clearly violated?
And if yes, it is likely that Mrs. Clinton's conduct caused harm to national security.
Is it likely?
And if those two questions are answered yes, then I believe many, if not most reasonable prosecutors, would feel obliged to bring the case.
So I was I was uh gratified to see this piece that Andy wrote, because this intent has still has me buffaloed.
Who cares if she intended to put U.S. national security at risk?
Who does?
But the fact of the matter that the statute says gross negligence.
Gross negligence and lack of intent are the same thing.
Gross negligence if you're if you're just so willfully unaware, if you don't care, if you are so unattached that you're not aware of what you're doing.
That's gross negligence.
That's the statute.
How can you intend not to care?
How can you intend to be negligent?
You just are.
So these statutes contradict each other.
And McCarthy's point is that this is selective application of a statute that in her case doesn't apply.
It's taking the intent statute that does require intent, moving it over to the area in which she has transgressed and applying it where Congress doesn't.
This strangely sounds very similar to what Chief Justice John Roberts did with Obamacare.
He said to himself, you know, I just don't think, and this is I think he either admitted this or somehow it came out that the chief justice, you know, I just I'm not comfortable.
I'm not comfortable judging something here to be unconstitutional that has been duly passed by the elected representatives of the people.
I just don't find uh comfort level doing that.
So he rewrote it, in a sense.
Remember when that Obamacare decision came out, and the f what the first couple sentences of the decision were read, and everybody thought that they had just found it unconstitutional.
And then you keep reading and you find out that the actual law had been adjusted at the court to make, it was all about whether it uh uh the government can tax or force people to buy consumers to buy a product, and the way the Fourth Amendment says they can't, so the way you get around it is to call it a tax.
They have the federal power to tax.
Uh it was it was a convoluted mess.
And it was all resulting from the fact that the chief judge, chief justice did not want to find something so paramount, so big, so important to be unconstitutional.
So we found a way to make it constitutional.
And it sounds eerily similar here to where they looked and looked and looked and tried to do everything they could to avoid charging her for what she did.
He was grossly negligent in handling classified top secret information, and to exonerate her because she didn't intend to.
Let me know the next time any of you ever charged with a crime are allowed to skate on it because you didn't know, or you didn't intend to do what you did.
Let me know how that works for you.
Because I don't know if it working for anybody.
Anyway, I've got to take a brief break here.
We'll come back, we continue.
Don't go anywhere.
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800 282-2882.
Here is Anthony Cleveland.
Great to have you, sir.
Hi, Rush, uh, listener for 29 years, I think, right around there.
You're pretty close.
We got our 28th anniversary coming up in less than a month.
You really August 1st is gonna be 28 years.
Oh, wow.
Wow.
Okay, I know I know it's approaching the third decade, so uh I'm a proud listener.
I'm great to have you out there.
Thank you.
Thank you.
Uh I've been uh anticipating the end of this cheap matinee for uh several months now, and uh it happened a few weeks before the Republican convention.
I'm just interested in what your insight is towards that significance.
Yes it is.
The timing of this before the Republican convention.
Uh you'll have I haven't thought about it in those terms yet.
What what is your theory on it?
Well, I just think uh one of Mr. Trump's uh things that he says is crooked hillary, crooked hillary, and it looks like No, no, she's not.
Look, she's been exonerated, and I just hope there's enough uh ammunition there with Mr. Trump that he comes out and just Well, you see, that's in in a in a way that's kind of the point.
She has been legally exonerated, but with a lot of questionable twists and turns politically, she hasn't been.
The FBI director pretty much stipulated that she trafficked in top secret classified information.
The FBI director has admitted that it's pretty likely that hostile actors they couldn't find any direct evidence of a hack, but the hackers will be glad to tell you that they've done it.
But he laid out a case.
I I went through the beginning of the program, all of the things that she did.
He just said at the end of the day she didn't intend to.
He couldn't find any intent to be grossly negligent like she was.
And so because there wasn't any intent, then no reasonable prosecutor would pursue this.
In a legal sense.
You prosecute on the the basis of the nature of evidence, the likelihood of a conviction.
I mean, nobody wants to go into court thinking they're going to lose if they even could.
Some cases you have to prosecute, like murdering OJ case, you have to prosecute it.
But things like this.
Prosecutors can decide based on all the evidence and the recommendation from the people that collect the evidence, the FBI whether to go or not.
So the FBI director said, I'm not going to recommend that they prosecute, because no reasonable prosecutor would prosecute the case.
Well, based on what?
But that doesn't mean that a presidential candidate or presidential party cannot prosecute what she has done here.
She has pretty much been tied to gross negligence.
This we knew before Comey went through.
We know she's been trafficking in these things.
We know she had a private server.
We know she had it set up so that she would be able to shield it from public view.
That was why she did it.
The Clintons and the Democrats don't want us to be able to find out what they're really doing.
They don't want there to be an email record, for example, that shows why a hundred million dollars has been given to them by foreign governments, for example.
They don't want that record known.
But we know that it happened.
So it's it's it's going to be up to now the political world to carry out the case, to prosecute the case.
Back in just a second.
Here, let me just give you the big one.
I could go through the list of things that Comey said, but here's the big one.
Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is no reasonable prosecutor would bring such a case.
That's all you need if you're Donald Trump.
That's all you need.
Plus there's more, although there is evidence.
This is the FBI director, the investigating authority here.
Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.
So we can go to, you know, she's running around running ads, saying that Trump is unfit, that he is unqualified, that he doesn't have the right temperament.
Well, let's turn it around.
This woman obviously is unqualified.
She's engaging here.
The FBI director pretty much said, and her defenders on CNN are pretty much saying that the way she skated was she didn't intend to divulge U.S. national security secrets.
She didn't intend to traffic in top secret documents.
She didn't intend.
And yet the statute that they go after her for, if they did, would would be one that charges her with gross negligence.
And Andy McCarthy's point is how in the world does intent have anything to do with gross negligence.
Gross negligence by definition eliminates whether there was intent or not.
Again, there are two statutes in play here.
Let me see if I can make sense of this again for you.
According to Director Comey, Hillary Clinton checked every box required for a felony violation of Section 793F of the Federal Penal Code, which is Title 18.
That's where we get the statement, although there is evidence of potential violations of the statutes regarding the handling of classified information.
Our judgment is that no reasonable prosecutor would bring such a case.
Before I go through this further, let me review some of some of Comey's statements here.
There is evidence that they were extremely careless.
No evidence of intent to violate law, but evidence of carelessness with classified material.
Secretary Clinton used multiple servers.
What do you mean she didn't intend?
She intended to keep all this private.
That's the whole point.
There's your intent right there.
But no, she didn't intend to traffic in top secret information, classified information.
Hillary Clinton sent and received all levels of classified information.
The FBI discovered several thousand work-related emails.
This is after Hillary Clinton claimed under oath that she had surrendered them all.
They found additional emails, work related that she had not surrendered, even though she had told them and promised them she had.
From Comey, 30,000 emails that were deleted by Hillary Clinton from those 30,000, 110 emails, and 55 email chains contained classified emails, eight top secret, 36 secret.
Now I ran through that in a hurry the first time, but let's analyze this.
From 30,000 emails that were deleted, there were 60,000 plus emails on her server.
She said 30,000 of them are private and personal, have nothing to bear here.
They have to do with yoga and my wife daughter's wedding and all that other kind of stuff.
And I'm not turning those over.
She turned over 30,000 of the 60,000.
Comey said today that from the 30,000 deleted, from the 30,000, she did not turn over.
They found 110 emails and 55 email chains that contained classified emails, eight of which were top secret, 36 were secret.
Yet she didn't intend to traffic in this stuff.
And I guess it also means she didn't intend to delete them.
Because Comey said she deleted emails like you and I do.
We look at our inbox, it gets big, we start deleting things to bring it down, make it a smaller size, we randomly select emails to delete here or there.
That's what we found she did.
So you get 60,000 emails, 30,000 of them she says are irrelevant, and that's not challenged, by the way.
She turns over 30,000.
And remember, they were turned over in hard copy paper form, if you recall.
Well, apparently the FBI found some of the 30,000 that she deleted or did not turn over.
And in that 30,000, they found 110 emails and 55 email chains containing classified information.
But where's nothing to see here?
Because she didn't intend to traffic in the stuff.
But she didn't turn it over.
Comey said that email chains regarding a then top secret program involved Hillary Clinton both sending and receiving emails.
But I guess she didn't intend to be disseminating classified information.
Comey said there is evidence that Clinton and associates are very careless in the handling of classified material, and a private server is no place for such.
But still no recommendation to indict.
Comey said the security culture of the State Department was generally lacking compared to elsewhere in the U.S. government.
He said that it is possible that hostile actors gained access to Clinton's personal email account.
So, you know, whether she's indicted or not, or whether she intended to or not, Hillary Clinton, by virtue of Comey's press conference today, allowed top-secret information to be open to attack by foreign governments.
And after saying all that, the FBI director said no reasonable prosecutor would bring this case.
Which is why I say, and of course no reasonable Supreme Court Chief Justice would deny America's first black president an unconstitutional law, like Obamacare.
So Comey detailed gross negligence.
He detailed gross misconduct and says there's not going to be a prosecution because There was no intent.
So how do you get there?
Well, again, according to Andy McCarthy, Comey admitted, like I just detailed for you that Hillary Clinton checked off every box required for a felony violation of Title 18, Section 793 F, Title 18 is the Federal Penal Code.
With lawful access to highly classified information, she acted with gross negligence in removing and causing it to be removed from its proper place of custody, and then she transmitted it and caused it to be transmitted to others not authorized to have it in patent violation of her trust.
Gross negligence.
Director Comey even conceded that she was extremely careless, as I just read to you, and strongly suggested that her recklessness very likely led to communications, her own and those she corresponded with, to being intercepted by foreign intelligence services.
He admits all this.
So there's not an exoneration, here's my point.
There is a a legal, well, there's not enough here for us to prosecute.
We're not sure we get a conviction.
But in the political world, this is just beginning.
So in order to give Hillary Clinton a pass, what the FBI did apparently was rewrite the statute, inserting an intent element that Congress did not require.
Section 793F of the Federal Penal Code, Title 18, does not require an intent element.
The added intent element makes no sense.
Because the point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to be careful with national defense secrets.
And when they fail to be careful, when they fail to carry out that obligation, because they have been grossly negligent, then they are guilty of serious wrongdoing.
The lack of intent is irrelevant.
People never intend the bad things that happen due to gross negligence.
They may roll the dice and hope nothing happens, but they don't intend to.
It's why, when you have a gross negligence statute, it's irrelevant to put intent in it or not.
So what happened here?
Well, there happens to be another statute that does require intent, that does not expressly deal with what Hillary trafficked in.
But apparently, that statute that requires intent is what is being used here in order to arrive at the conclusion that no prosecution is recommended.
The FBI has told the public that because Mrs. Clinton did not have intent to harm the United States, we should not prosecute her on a felony that does not require proof of intent to harm the U.S. Meanwhile, although there may have been profound harm to national security caused by her and her grossly negligent mishandling of classified information.
We, the FBI, have decided she shouldn't be prosecuted for grossly negligent mishandling of classified information.
We have decided she shouldn't be prosecuted because she didn't intend any of it.
And that's the commingling of the statutes.
It makes no sense.
If you're trying to make sense of it, stop.
It doesn't make any sense.
It's the commingling, my word, of two statutes.
One requires intent, the other one is simply based on gross negligence.
So they've foot-flopped them in a sense, because they can.
It's that simple.
Anyway, uh look, it's a long answer to our caller, but the the caller uh wanted to wanted to make the case now that since she's been exonerated, she hasn't been.
And by virtue Comey did not exonerate her.
Comey just said We can't find a successful route to prosecute her because she didn't intend to do any of this.
Now the timing of this, you know, let's not forget the Democrat convention is the following week from the Republican convention.
So I don't the timing of all this.
If you start, if you want to start playing those games, I mean the Lynch meeting last week with Clinton, and then Hillary's interviewed for three or four hours this weekend.
What the hell was that?
And then Comey, nobody knew on Friday this press conference going to be today.
Did you know Friday?
Nobody knew that there were the it was just this morning we found out that Comey's going to have the press conference here.
So look at look at what's happened here in the last four days.
Just the last four.
You had the Clinton Lynch meeting on the tarmac in Phoenix.
You had Hillary all of a sudden show up for three and a half, four hours to interview the FBI.
We learned that all of the people the FBI was talking to on Hillary's staff could not tell the FBI anything because she'd hired all of them as her lawyer, quote unquote, granting them attorney client privilege, meaning they can say nothing, even though she didn't hire some of them until years after this whole thing surfaced.
So we have a weekend of speculation that Hillary's interview, oh my god, oh my God, what does it mean?
Uh Loretta Lynch practically almost recusing herself but falling short of that, saying, No, no, no, no, I'll accept the recommendation of the FBI and the career prosecutors.
And then there's all this scuttle, but throughout the weekend over.
Didn't all of us wake up today, find out Comey's got a presser at 11 o'clock.
So whoa.
On the same day, Barack Hussein O is putting Hillary Clinton on Air Farce One and flying her to a campaign appearance in North Carolina.
Now you know damn well he's not going to do that if there's even the slightest possibility that the FBI is going to recommend that she be indicted today.
By the way, you know, people are asking the wrong question.
You know, Trump, come on, get with it.
The wrong question is who's paying for it?
That's not the qu that's not going to phase anybody.
Okay, so it's $200,000 to operate Air Force One, and Obama's taking her to a campaign appearance.
The fact that it costs a lot of money, that's not going to change one person's vote.
We're beyond that.
The question is, why is she on Air Force One?
To begin with.
Why?
He's not taking Trump on Air Force One.
Why is he taking her?
I want to get further into this, but I've got to take a break because I'm alone here.
Back in a second.
Yeah, we're back.
Great to have you.
Ill Rushbow back to the phones, uh, Tom in Duluth, Minnesota.
Great to have you with us, sir.
Hi.
Oh, thank you, Rush.
First time caller, long time listener.
It's great to have you with us.
What's up?
What's shaking?
Well, I want to give you a little bio.
I've been an attorney for 40 years.
Um, I was a JAG officer initially.
I both prosecuted and defended people.
After I got out of the Navy, I continued to do that.
Um first year law school, you take a criminal law class and they teach you the difference between general intent and specific intent crimes.
The majority of crimes are general intent.
That's what this is.
That's what she violated.
She had the intent to do what she did, whether she intended to violate the laws and commit whatever she did is unimportant.
Um it's sort of like if a person gets drunk and intends to get drunk and then runs over a bunch of people and kill them.
You don't have to prove that he intended to kill those people.
He did it.
Um that was sufficient.
So the thing that distresses me most here is that a prosecutor is supposed to see the justice is done.
And in this case, I think the least they could have done is presented this to a grand jury and let a jury decide if the grand jury decided to indict that uh let a jury decide.
I mean, that's what the law is all about.
And I I just don't see where he can mind read what this shows.
In my mind, it looks like something that at least should go to trial.
And if she's not guilty, she's not guilty, but I just can't believe he's not at least taking it that far.
So just my comments.
Well, even in your scenario, What it let what he pre he presents a case and recommends that what she be prosecuted, or would he recommend a grand jury, federal rejury?
What to get?
Well, he would that would I think there's two steps.
I think he could either uh recommend that it go to the grand jury, or there's another route.
Uh, but I would think the grand jury would be the one to use.
Well, you know, I I'm becoming extremely cynical.
And you're you're speaking as an officer of the court, where the intention here is to actually find out what happened.
And that's what not what we're dealing with here.
We we are dealing with a political, pardon me, a politicized.
There's no question about this.
We are dealing with a politicized Department of Justice.
What the last thing it wants to get to is what you suggested.
Their objective is to shield her.
Now, I know Comey's reputation is what it is, but I'm sorry.
I don't know how you conclude anything else given what he also said.
Fastest three hours in media.
Two of them are already in a can.
We have a brief break here at top of the hour.
We'll be back, and we will resume with much more shortly.
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