Guilty!—But Not Really Guilty?

Victor Davis Hanson
American Greatness

In 2011, then Homeland Security Advisor to President Obama, John Brennan, swore before Congress that drone-targeted assassination missions near the Pakistani border had not led to “a single collateral death.”

That was an obvious lie with grave consequences, given that Brennan was sworn under oath and was one of the top officials in the US national security community. Yet there were no subsequent repercussions.

In fact, the opposite occurred. Brennan was subsequently rewarded with a 2013 appointment as CIA.

But the next year, once again, Brennan lied to Congress, assuring the Senate Intelligence Committee that his CIA had not secretly accessed senate staffers’ computers. Again, there were no consequences for his repeated lies. Instead, Brennan, upon retirement, went on to be an MSNBC/NBC analyst who helped to promulgate the Russian collusion/laptop disinformation hoaxes.

In 2013, Director of National Intelligence James Clapper also lied under oath to Congress when he laughably stated that the National Security Agency did not spy on American citizens. Later, when called out by senators, Clapper fudged in a televised interview. “I responded in what I thought was the most truthful, or least untruthful, manner by saying no.” Try that contortion with the IRS.

Some members of Congress referred a criminal complaint of perjury against Brennan to then Attorney General Eric Holder. Nothing happened. Again, one of the chiefs of the American national security community was exempted after lying to members of Congress.

Clapper went on to a lucrative position as a CNN national security analyst, and at one point he claimed that Trump was a Putin “asset.”

As far as Eric Holder, he had earlier defied a congressional subpoena and was held in contempt by the House. The Department of Justice, however, chose not to pursue the complaint. Later in the Trump administration, Trump adviser Peter Navarro would be sentenced to four months in jail for similarly resisting a congressional subpoena. Was it a crime or not to resist a congressional subpoena?

The Justice Department’s Inspector General concluded that Andrew McCabe, the former FBI deputy director and interim director, had lied repeatedly to a variety of officials, including FBI Director James Comey, various FBI agents, and officials of the Office of the Inspector General.

On some of these occasions, McCabe was sworn under oath.

Yet in 2020, the Department of Justice chose not to pursue the IG’s criminal referrals. McCabe went on to become an outspoken CNN News contributor. Note that Gen. Michael Flynn, Trump’s National Security Advisor, was indicted—and convicted—for similarly lying to the FBI in 2017.

In 2016, an FBI investigation found that Hillary Clinton, as Secretary of State, had violated the law by transmitting and receiving classified information over an unsecured private server.

Subsequently, she destroyed thousands of emails and some devices, some of which were under subpoena. FBI Director James Comey found that “any reasonable person” should have known it was illegal to transmit classified information in such a sloppy fashion.

Comey, however, found that “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.”

Translated, that meant Hillary Clinton had likely broken the law, but it was unlikely that any prosecutor like Comey would indict the then-current Democratic nominee for president and former Secretary of State—at least in the fashion that state and federal prosecutors would later file over 90 indictments against Donald Trump.

In 2018, the now-former FBI Director James Comey on some 245 occasions claimed under oath to Congress that he did not know or could not remember essential facts in the FBI Crossfire Hurricane investigation of Donald Trump, which he had authorized.

In addition, the Office of the Inspector General of the Justice Department found that Comey had broken the law by violating both DOJ and FBI policies, as well as the FBI’s employment agreement—especially by retaining in his personal safe copies of four bureau memos concerning a confidential conversation with President Trump.

Elements in the memos from that meeting likely contained classified information. Yet Comey leaked it to a friend without a security clearance in order to make it public. Despite the damning IG report, the Department of Justice chose not to prosecute Comey.

Is there a pattern here of likely guilt that is contextualized into a not guilty assessment—and not guilty due to the prosecutorial psychoanalysis of the jury—that a guilty verdict would be difficult to obtain?

Or sometimes prosecutors make the assumption that there was no criminal intent on the part of such a well-known public figure or that the crime was relatively inadvertent.

In other words, the above suspects were guilty of breaking laws, many of them felonies, but prosecutors chose not to prosecute them. And this same exemption reappears in the two most recent cases of felony exemption due to extenuating political or ideological circumstances.

Special Counsel Robert Hur—charged with examining whether President Joe Biden unlawfully removed classified documents, crimes for which the other special counsel, Jack Smith, was concurrently indicting Donald Trump—recently found the President culpable for removing classified files.

Hur noted that Biden had unlawfully and knowingly removed and retained classified files since his senate days—or possibly over a half-century. Biden had also removed the files to multiple locations, few of which were secure.

Hur compiled photos of the mess in Biden’s garage, where files were stored in delipidated boxes. Moreover, Biden removed them not inadvertently. He did so to further his political career and to profit by providing a ghostwriter with classified material to enhance his memoirs—which had garnered an $8 million advance in a book deal.

Biden, as a senator and vice president, had no legal authority to declassify any of these classified files. Hur further found that Biden made the files’ presence and contents known to his ghostwriter, Mark Zwonitzer. The latter had no security clearance to view such documents.

In addition, Biden was on tape at least as early as 2017, admitting that he was in violation of the law. Yet he did not come forward for nearly six years. And when he did contact authorities, it was only in fear that his own DOJ’s special counsel was soon to indict Trump for the very same exposure—willfully retaining files at his home that he knew were classified.

Worse still, ghostwriter Zwonitzer willfully destroyed state’s evidence when he erased his incriminating tapes (recovered partially by Hur through forensics and transcripts). Yet, mysteriously, he was never prosecuted for obstruction of justice or destroying requested materials.

After reviewing Biden’s culpability, Hur chose not to prosecute him. As he put it, “Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency, when he was a private citizen.”

And why the exemption? Hur explained his reasons further:

“We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory. Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him—by then a former president well into his eighties—of a serious felony that requires a mental state of willfulness.”

Translated, Biden was likely guilty but, in Hur’s view, too cognitively challenged and thus too sympathetic a figure to be found guilty—but apparently not enough impaired to serve as President of the United States.

Finally, we come to the case of Fulton County, Georgia, prosecutor Fani Willis. Judge Scott McAfee chose not to remove her from leveraging a racketeering charge against Trump despite clear evidence that she had lied under oath and was likely guilty of obstruction of justice, witness tampering, and fraud.

Two associates of Fani Willis testified that she had a romantic relationship with a clearly unqualified Nathan Wade before she appointed him as her chief special Trump prosecutor. Wade had no criminal trial experience, was sexually involved with Willis, and took her on expensive junkets in quid pro quo fashion.

Telephone records located Willis and Wade at her residence during times when they had sworn there was no romantic relationship. Thousands of personal texts between the two confirmed their intimacy. Willis produced no proof she had ever paid Wade back for the expensive trips he took her on, lamely pleading that she had reimbursed him with cash—although she produced no records to that effect.

Willis had campaigned for office and raised money on promises to get Trump. She had come up with the novel idea of using a racketeering charge to indict him for questioning the 2020 Georgia balloting. Both in her testimony and a church appearance, Willis played the race card, alleging that she was the victim of racial bias.

Yet despite lying under oath, colluding with Wade to produce near identical testimonies, and having no clear defense of her free trips from Wade, Judge McAfee chose not to dismiss her from the case, despite giving her the option to remove Wade.

That was an incoherent decision, given that Willis had hired Wade, had become romantically involved with him, and had collated their testimonies. Willis, not Wade, was the architect of the deceit and yet remained free to continue her prosecution of Trump.

As in the Hur case, in compensatory fashion, McAfee editorialized about the roguery of the two. And also, as in the Hur case, the judge essentially exempted Willis from the legal consequences that her criminality had earned.

“However, an odor of mendacity remains. The Court is not under an obligation to ferret out every instance of potential dishonesty from each witness or defendant ever presented …Yet reasonable questions about whether the District Attorney and her hand-selected lead SADA testified untruthfully about the timing of their relationship further underpin the finding of an appearance of impropriety and the need to make proportional efforts to cure it.”

In the end, the judge gave Willis the choice to remove herself or her paramour Wade from the prosecution; she chose Wade.

But apparently forgotten was the reality that Willis, not Wade, appointed such an unqualified boyfriend as her chief counsel and established his compensation. It was Willis, not Wade, who was the recipient of free trips and perks. It was Willis, not Wade, who was most contradicted by other witnesses. And, of course, Willis, not Wade, was the driver behind the entire prosecution of the ex-president and current leading contender for the presidency.

What are the common denominators of such exempted criminality?

First, we can start by identifying those who were not exempted due to an asymmetrical application of our laws. Trump advisor Peter Navarro was convicted and sentenced to jail for failure to obey a congressional subpoena in the manner that both Eric Holder and Hunter Biden were not.

Trump was indicted for making false statements in a manner that Brennan, Clapper, Comey, Wade, and Willis were not. Biden disclosed classified materials. Comey likely did as well. And Clinton clearly violated the law by knowingly using an unsecured server for classified material. None were indicted.

Second, in such high-profile cases, prosecutors and judges find ways to justify not charging or pursuing those they deem guilty of breaking the law, either by claiming—in the fashion Comey did in the Clinton case or Hur did with Biden—a jury, in their opinion, would not convict them.

But since when do such prosecutors with ample funding and resources predicate guilt or innocence, not based on the facts of the case, but whether the defendant would appear sympathetic to a jury or perhaps too powerful to risk such a controversial indictment?

Third, to excuse their laxity or unequal application of the law, judges and prosecutors blast the soon-to-be excused defendant, as if such editorialization makes up for preferential exemption. So Joe Biden is not prosecuted for clearly unlawfully removing classified files. But as a booby prize, Hur offers up the sting of Biden as “a sympathetic, well-meaning, elderly man with a poor memory.”

Judge McAfee, more or less, does not pursue a clearly guilty Willis but offers us the compensatory, “However, an odor of mendacity remains.”

Almost all the prosecutorial decisions not to pursue these guilty parties—a McCabe, a Comey, a Brennan—are couched with excuses and contextualizations rarely, if ever, offered to most Americans.

Fourth, all these people are an incestuous lot. Holder does not prosecute Clapper or Brennan, but himself was not prosecuted for resisting a congressional subpoena. Comey lets Hillary off, but he himself is let off after leaking a likely classified document. A Biden-administration-appointed special prosecutor exempts Biden, but another Biden prosecutor indicts Trump. After receiving their exemptions, the pots Brennan, Clapper, Comey, and McCabe all turn up on cable news blasting the kettle Trump.

What is the common explanation for all this madness?

Our criminal justice system no longer treats the accused equally under the law. If the defendant is deemed a conservative, like a Michael Flynn, Peter Navarro, or Donald Trump, then the full force of prosecution falls upon them.

But if a Biden, Brennan, Clapper, Clinton, Holder, or Willis, then the state contorts itself to find excuses, exemptions, and mitigating circumstances not to pursue justice—and so often to the point of absurdity and the erosion of Americans’ confidence in their laws. In these high-profile cases in this polarized era, a cynical public now expects any accused prominent leftist to remain unindicted, while any non-leftwing target will be indicted, convicted, and jailed—for the same alleged offenses.


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50 thoughts on “Guilty!—But Not Really Guilty?”

  1. Inquiring minds would like to know, what did Vice President Biden do with the classified documents he personally removed from the Senate SCIF while his son joined him on AF2 travels to China? Just asking for a friend.

  2. Craig Brookins

    Victor, once again, a very well constructed and accurate comparison illustrating the blatant two-faced nature of our contemporary “justice” system. Good morning America. I’m sure your eye is pretty sore from getting continually poked by our progressive, marxist friends. The cure for this painful situation is, of course, complete compliance and submission to the “progressive”, globalist agenda. When will that be?

  3. The Obama/Obiden administrations have done irreparable damage to the Republic and its citizens. However, the citizens allowed it!

    1. 100% Correct.
      Plus, the corporate, national media should not be underestimated in their assistance of the Leftists.

      The Left’s desperation includes a former national news spokesperson even discussing assassination of their opposition candidate is an indicator of how far they may go to take another election. Difficult to even imagine such lowlifes.

      So, this November we shall witness which course the Republic follows, whether enough have awoken to what is going on right beneath their collective noses.

      It is interesting how in South America, sufficient have awoken to give conservatives a try. El Salvador’s Bukele, Argentina’s Milei, and Ecuador seem to be leading the way.

    2. No, they just figured out a way to get around the public’s influence and desires.

      The good thing is that it has all been revealed. It is obvious what is going on in the court system.

      It is obvious what is happening in the fake press arena.

      What will be the big summer hoax? They have already tried their first salvo — the “bloodbath” hoax. We sniffed that one out within minutes.

      It is now becoming a game to see what “creative” hoaxes they manufacture to keep their demented followers in line.

  4. The common denominator is that unless & until there is election integrity a D after your name means an exemption from legal consequences for breaking the law. It isn’t complicated.

  5. “In 2011, then Homeland Security Advisor to President Obama, John Brennan, swore before Congress that drone-targeted assassination missions near the Pakistani border had not led to “a single collateral death.”” See, he wasn’t lying. The Obama administration just considered anyone who was killed in a drone strike to have been a terrorist and, thus, not a civilian. To paraphrase George Costanza, it’s not a lie if you believe it.

  6. Not only does our criminal justice system asymmetrically treat “conservatives” unequally under the law, allegations and evidence are falsely predicated and manufactured in true Lavrentiy Beria “show me the man and I’ll show you the crime” fashion. And the aforementioned Leftists and media protectors are not even a little bit sheepish or ashamed.

    1. To them, there is no right and wrong. There is no morality. No good and no evil. Lawyers.

      Per “Rules for Radicals”, the ends justify the means.

      We don’t think that way, which puts us at a disadvantage. Strange but true.

  7. Lots of good reasons to never vote for a Democrat, and Professor Hanson lays out more here. Thank you, sir.

  8. edward McFarlane

    Could not have said it better myself. But … what is missing from the article is what to do about these miscarriages of justice. We are only one step away from what Putin did to Navalny – as far as I know the 2-tiered justice system has not killed (literally) their political opponents but have done everything short of that in the lust for power.

    1. Moving pre-trial detainees Jake Lang and Ryan Samsel from DC Jail to Brooklyn MDC Gang Unit in dead of night, separating them there, and leaving them to their own defense inside, is pretty close to asking the local inmates to solve the DOJ’s embarrassing situation of 3 years and no trial.

  9. Captain DeStructo

    The fix is in. The public sector has reached critical mass. I only hope when the dust clears something of the country can be salvaged. It may be entirely up to the private sector, the citizens. The government & all it’s agencies & involvements has brought us to this crisis. I do not see how we can rely on government to resolve it.

  10. The only remaining solution is for the next Republican Presidents to appoint Attorney Generalswho will charge and indict your named persons and try each before a jury.

    1. AbsurdlyCritical

      State GOP Attorney Generals are cowards. You can’t tell me with as crooked the Democrats are that none of the high ranking Democratic party members have any potential criminal liability in any red state? As soon as blue state AGs started going after Trump on BS charges (The NY loan thing was especially egregious considering the banks he did business with were both reimbursed and did their own assessment of Trump’s property collateral that agreed with Trump and testified on Trump’s behalf that they would do business with him again) red state AGs should have started filing suits against Democrat politicians. However the GOP in the Uniparty has to be the gracious loser party sticking to rules that increasingly mean nothing as the Democrats cross Rubicon after Rubicon. If the Democrats had any fear that any of their own misdeeds would catch up with them they’d think twice about bringing bogus charges against Trump but they have no fear of prosecution so they go after their opponents hypocritically using lawfare all day and night because nothing ever happens to them. It makes me sick.

  11. I dunno.
    The Federal Government is an extension of the Democratic Party? Elected Republicans pretend they aren’t Democrats?
    I would have preferred that Hur had concluded his report by just saying that President Biden violated the law.
    Why stir up the feelings by half, or more of the country that laws are applied unequally. That blind justice has a peep hole to see violators who aren’t part of the Big Government Donkey Club?

  12. Love the following comment in reference to President Biden illegally removing classified documents – “… Hur’s view, too cognitively challenged and thus too sympathetic a figure to be found guilty—but apparently not enough impaired to serve as President of the United States.” ….If Biden is deemed too unfit to be held accountable for the removal of classified documents, how does one reconcile him being accountable or fit to execute the duties of President of the United States?

    Also, thanks VDH for putting the Fani Willis story into its proper perspective. Judge McAfee, similar in fashion to Special Investigator Hur in the Biden case, offers the compensatory “aura of mendacity” as if that somehow atones for letting Fani Willis off the hook for her crimes and deceit. As VDH justifies, the right thing for Judge McAfee to have done, both morally and legally, was to have Willis removed from the Trump case.

  13. Professor Hanson,

    I have one quibble with this otherwise magnificent article. In a later paragraph, you state that “Fanny Mae” (I refuse to use this person’s actual name) came up with the RICO charges for Trump, et. all.

    In fact, there is a career Democratic Party operative working in the Fulton Co. D.A.’s office, and he has been calling the shots for some time now. According to sources within that office, he’s basically taken over day-to-day operations. Looking at “Fanny’s” testimony in her removal trial, i.e., her not knowing what it means to be declared a “hostile witness,” that is not much of a stretch to believe.

    Here’s the link to an article explaining this:

    Add to this the two separate visits Nathan Wade paid to the WH Counsel’s office (and quite helpfully billed Fulton Co. for), and it’s not hard to see a certain RJB Jr.’s fingerprints all over that prosecution, if not all of the others as well.


    Indeed it appears that the justice system under Democrat administrations is a two tiered system. The truth is there is but one tier. The democrats have the power and you do not!

  15. William Weinheimer

    And people think that these same Democrats run honest elections and ballot counting? How so? When do you think fairness applies anywhere a Democrat has authority to gain advantage by any means available and will prosecute anyone that questions the veracity of the election.

  16. Stephen A. Hill

    Equal Protection Under the Law is one of the hallmarks of the Enlightenment, the American Revolution, and the United States Constitution.

  17. Oddyseus Ithaca

    The left has completely left behind the concept of a government of laws, not men. The real question is how long this can go on without complete despotism? It will go on as long as the right allows it.

  18. In the public realm our justice system now requires an initial assessment and classification. If one is deemed to be on the right side of history, meaning one who is oppressed or supports the oppressed, there will be no prosecution. If one is deemed to be on the oppressor side, prosecution will insue.

  19. In the obvious governmental absence of legal and moral authority, flaunting of fair treatment accompanied with threats of prosecution, persecution and force our Constition has two stated remedies. I hear very little about those.

    The Founders are rightly ashamed of us.

  20. The excuse no jury would convict any of these characters might be true in NYC or DC (the opposite of Trump). But with a carefully selected venue and voir dire, as practiced by the dems, I’m sure we could manage some convictions.

  21. Vivek Ramaswamy & President Melei have told & are showing us what needs to be done- the bureaucracy’s need to be slashed by 75%. The corrupt institutions need be overhauled. Non-essential agencies shut down. We need to limit their power on us citizens. Time to take our country back.
    We have a county to save.

  22. This was an incredibly well written piece of work. I am grateful for the great minds of our time and the work they are doing to help us save this ONCE great nation and HOPEFULLY make it great once more. But if we do not bring back public shaming and discipline, there is going to be NO way to fix it.

  23. VDH,
    I just watched the special they did about your “life on the farm”. I weeped for that country they have taken from us, which appears to be forever gone. I am so encouraged by you, however, as you are an AMERICAN TREASURE.

    Your analysis is always spot-on, and you are so simply KIND. The country would do well to embrace the intelligence and attitude you display so well.

    Blessings always Victor (and yes…you did live up to your name-sake…quite well)


  24. Pepe Sobreruedas (Miami, FL)

    P#15: “…file over 90 indictments against Donald Trump.” Victor, Victor, Victor…How many times do I have to tell you they are “counts,” and not “indictments…” The indictment is the Grand Jury charging document containing the alleged violation(s) of a single or various statutes, numerically organized by “counts…” You want to say: “over ninety counts…” not “over ninety indictments…” Otherwise it makes you appear as if you don’t really know what you’re talking about and we wouldn’t want that…

  25. Amos Fleetwood

    This is why I think and tell folks, don’t go to jail. If you happen to do something against the law, don’t let the police arrest you. Maybe you did nothing wrong but the police won’t to arrest you for some leftist reason. Don’t let them arrest you. There is no such thing as a fair judicial system any longer. Why let corrupt people take your freedom? Why spend years locked up fighting a bogus charge? Until these so called untouchables are arrested ill never let anybody I no get locked up. Not that I run with folks that get into trouble often. But if the circumstance arises, do what you got to do to keep your freedom.

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