DAVE LEROY: FBI’s Comey ‘Extremely Careless’ About the Rule of Law

July 11, 2016 - Idaho Statesman
As published in the Idaho Statesman July 11, 2016.

In Idaho “extremely careless” driving can cause you to lose your driver’s license for a year. Extremely careless conduct with a firearm can and frequently does cause a loss of life.

Extreme carelessness in the handling of another’s valuable property or money can earn you 14 years in the penitentiary.

But apparently, the extremely careless handling of national state secrets has won Hillary Clinton a pass from FBI Director James Comey.

Need I say that nothing about the stunning conclusion to this top-secret email investigation represents a normal or defensible law enforcement practice?

Never in the 20,000 criminal cases that I handled as a local and state-level prosecutor did I ever have a police officer usurp my role and tell me in his written report that “no reasonable prosecutor would bring this case.”

Not ever in decades of defending people charged with crimes, have I encountered a law enforcement officer who presumed to intervene for the defense to explain that my client was not sufficiently “sophisticated” to form an intent. Would we retain on the force a Boise city detective, let alone applaud police Chief Bill Bones, if they personally interviewed a high-profile suspect in a sensational felony case without reading that person her rights, taking testimony under oath, recording and transcribing the conversation or all of the above?

Should our U.S. Attorney for Idaho chat with the spouses of investigative targets and not conflict herself off the cases?

As Americans we are asked to give our respect and obeisance to laws and rules, courts and judges because we are assured that we will each be treated fairly and equally under the rule of law.

The concept arises from the earliest days of our country. Thomas Paine, the patriot, exhorted would-be rebels in his 1776 pamphlet “Common Sense” that “in America, law is king!”

Founding Father John Adams insisted upon “a government of laws, not men.”

Will federal agents overlook the transgression the next time one of my clients tells lies under oath? Can you be assured that the destruction of thousands of pages of evidentiary emails is no longer a criminal act? Are the “gross negligence” provisions of the thousands of local, state and federal laws that contain that term now no longer capable of proof?

Sadly, in attempting to save the normalcy of an already highly irregular presidential nominating process, the director of the FBI has rendered a political rather than a legal judgment. In failing to do his job, Comey has been “extremely careless” himself and damaged every citizen’s respect for the rule of law.

David H. Leroy, former Ada County prosecutor and Idaho attorney general, practices law in Boise.

Lincoln on Amending the Constitution

“I wish now to submit a few remarks on the general proposition of amending the Constitution. As a general rule, I think we would much better let it alone. No slight occasion should tempt us to touch it. Better not take the first step, which may lead to a habit of altering it. Better, rather, habituate ourselves to think of it as unalterable. It can scarcely be made better than it is. New provisions would introduce new difficulties, and thus create and increase appetite for further change. No, sir; let it stand as it is. New hands have never touched it. The men who made it have done their work, and have passed away. Who shall improve on what they did?”

Speech in Congress, June 20, 1848

“Don’t interfere with anything in the Constitution. That must be maintained for it is the only safeguard of our liberties. And not to Democrats alone do I make this appeal, but to all who love these great and true principles.”

Speech at Kalamazoo, August 27, 1856


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Lincoln on American Exceptionalism

“It may be affirmed without extravagance that the free institutions we enjoy have developed the powers and improved the condition of our whole people, beyond any example in the world. Of this we now have a striking, and an impressive illustration.”

First Message to Congress, July 4, 1861


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Lincoln on Balancing the Budget

“I would not borrow money. I am against an overwhelming, crushing system. Suppose, that at each session, congress shall first determine how much money can, for that year, be spared for improvements; then apportion that sum to the most important objects.”

Speech in Congress, June 20, 1848

“As an individual who undertakes to live by borrowing soon finds his original means devoured by interest, and next to no one left to borrow from, so it must be with a government.”

Whig Circular, March 4, 1843


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Lincoln on “Career” Politicians

“If ever American society and the United States Government are demoralized and overthrown, it will come from the voracious desire for office, this wriggle to live without toil, work, and labor, from which I am not free myself.”

Attributed, The Life of Abraham Lincoln, by Ward Lamon


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Lincoln on a Constitutional Convention

“While I make no recommendation of amendment, I fully recognize the full authority of the people over the whole subject, to be exercised in either of the modes prescribed in the instrument itself; and I should, under existing circumstances, favor rather than oppose a fair opportunity being afforded the people to act upon it. I will venture to add, that to me the Convention mode seems preferable, in that it allows amendments to originate with the people themselves, instead of only permitting them to take or reject propositions originated by others, not especially chosen for the purpose, and which might not be precisely such as they would wish either to accept or refuse.”

First Inaugural Address, March 4, 1861


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Lincoln on Declaration of Wars

“The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood.”

Letter to William Herndon, February 15, 1848


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Lincoln on Divisiveness Within the Republican Party

“I do not feel justified to enter upon the broad field you present in regard to the political differences between radicals and conservatives.  From time to time I have done and said what appeared to me proper to do and say.  The public knows it all.  It obliges nobody to follow me, and I trust it obliges me to follow nobody.  The radicals and conservatives, each agree with me in some things, and disagree in others.  I could wish both to agree with me in all things; for then they would agree with each other, and would be too strong for any foe from any quarter.  They, however, choose to do otherwise, and I do not question their right.  I too shall do what seems to be my duty.”

Remarks, Washington, D.C., October 5, 1863


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