We Don’t Need to Prove that a Person’s Bias Affected His Judgment, We're Entitled to that Presumption
lthough DOJ Inspector General Michael Horowitz has produced a report on the Clinton email investigation containing many damning facts, most of us were disappointed that he did not reach one obvious conclusion, namely that senior officials with the DOJ fixed the case against her. The primary reason for this is that while the I.G. found proof of bias, he declined to conclude that any individual’s bias affected his or her judgment and actions. The I.G. applied an extraordinarily high standard of proof – he could find no evidence that the bias directly influenced any decisions. Let us examine how our legal system ordinarily handles questions of bias.
ormally, steps are taken to eliminate bias from criminal investigation or prosecution. Detectives do not investigate cases where they have an emotional involvement; prosecutors do not present cases where they know the defendant nor do judges hear them; jurors are questioned to be sure they don’t know anyone involved in the case. The well-known Judge Harold Rothwax of New York was a stickler for getting witness lists from the lawyers who appeared before him – “We don’t want jurors who know witnesses,” he would tell counsel.
otice that at no time do we insist on proof that evident bias would affect a person’s judgment, we assume that even any potential bias is enough to disqualify investigators, prosecutors, judges, and juries. The presumption is that such bias would taint any decision these people made. In fact, if it could be proven after a defendant’s conviction that the trial judge was biased against him, any competent appeals court would set the conviction aside because the judge had failed to disqualify himself. (See e.g. the Sam Sheppard murder case).
ontrast this to the I.G.’s standard here: proof that bias affected judgment, something you would never have unless a juror, say, wrote in his diary, “I hated the defendant since we were kids years ago. I couldn’t wait to convict him.”
e have abundant proof of pro-Clinton, anti-Trump bias at DOJ – the I.G. documents a great deal of it. We have in fact much more than that in Peter Strzok’s case; we have proof that he was ready and willing to use his position in the FBI to take official actions that would prevent Trump from being elected President. By right, this should taint every Form 302 he filed and every affidavit he swore to: everyone should proceed on the assumption that these documents are absolutely worthless and inadmissible as evidence (except to exonerate his victims).
hen the I.G.’s report on FISA abuse by the FBI/DOJ comes out, Horowitz will probably apply this same, impossibly high standard. Therefore, when discussing that report as well as this one, it’s up to us conservatives to remind everyone that we don’t have to prove that evident bias affected anyone’s judgment because we are entitled to the presumption that the bias affected his or her judgment. Senior officials at the DOJ fixed the case against Hillary Clinton because they wanted her to win the election; they framed Donald Trump and his associates because they wanted him to lose the election. It’s really that simple, except that in Trump’s case they went even further and planned a coup disguised as impeachment – but we’ll consider that another day.