CDZ Actus non facit reum nisi mens sit rea. -- You must understand this to be credible re: "Email-gate"

320 Years of History

320 Years of History

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The act is not culpable unless the mind is guilty. That is the meaning of the title sentence, and in common legal thought and parlance, the two central concepts of that statement are referred to as "mens rea" and "actus rea." The overall idea is fundamental to U.S. jurisprudential theory, and every lawyer and every CPA knows it. But that's legal theory. What are the implications in legal practice? In short, it means that in aiming to obtain a conviction for a non-strict liability crime (one that requires only actus rea), a prosecutor must prove, among other things, that the defendant intended to break the law s/he is charged with breaking, that is, mens rea must be shown in addition to actus rea.

Following FBI Director James Comey's announcement that the FBI is not recommending Mrs. Clinton be charged with crimes pursuant to violations of U.S. Law (not Departmental rules and procedures, which unless supported by an Executive Order, don't have the force of law) [see Note 1 at the end of this post], there has been a lot of kvetching. Republicans, in response, cry foul, saying, "It's clear as day that she violated the law. Dir. Comey laid out the ways in which she did so, yet no indictment is recommended. That's wrong."

Is it really wrong? It's not, and the following paragraphs explain why it's not. Why it's not has nothing to do with my opinion; it has everything to do with the burden of proof a prosecutor must meet to win a conviction, and absent revising the principles that govern U.S. law, that burden of proof isn't going to change.

Well, let's look at some of the laws that Mrs. Clinton may have violated:
  • 18 U.S. Code § 1924 -- Unauthorized removal and retention of classified documents or material:

    Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

  • 18 U.S. Code § 798 - Disclosure of classified information

    Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information —

    (1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or

    (2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or

    (3) concerning the communication intelligence activities of the United States or any foreign government; or

    (4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes —

    Shall be fined under this title or imprisoned not more than ten years, or both.
Looking at the two laws noted above, one notices that both are potentially in-scope and that both statutes require mens rea be shown. That settled, the next question is "did she commit acts that violated the provisions of either; is actus rea present?"

In terms of an actus rea having happened, there's no question. Mrs. Clinton did email classified information using her personal email account. That's been laid out in "black and white," and there's really nothing to argue about there, at least not among folks having any sense there's not. That leaves the element of mens rea to be established.

In determining whether mens rea exists, I, like everyone who was not directly part of the FBI investigation, have to rely on the people who were knowing how to do their job and actually doing it well and objectively when they reviewed the evidence. [See Note 2] Dir. Comey quite plainly stated yesterday that the FBI did not find evidence that Mrs. Clinton intended to break the law.

The lack of intent is why Dir. Comey remarked that no "reasonable prosecutor" would pursue this case to trial. Why? Because "reasonable prosecutors" know they don't have evidence to prove a mens rea, and they know they must have it. Lacking it, pursuing the case in court is a waste of the court's time, taxpayers' resources, and an undue burden on the defendant.

Why else might Dir. Comey have used the term "reasonable prosecutor?" Well, for one thing, he's a Republican -- a fact many folks seem to have forgotten, don't know, or just outright ignore -- so from a partisan standpoint, his views of Mrs. Clinton's candidacy are unlikely to be favorable. That said, he's also a law enforcement officer and attorney; thus, party notwithstanding, he must follow the letter and spirit of the law. He must follow its principles.

Make no mistake, however. Though he had to admit that there's no case to make in criminally prosecuting Mrs. Clinton, thereby giving her and Democrats the "bone" they most wanted, he also tossed a huge "bone" to the GOP: he "read" Mrs. Clinton "up one side and down the other," giving the GOP plenty of fodder for attacking Hillary Clinton for the remainder of the campaign. (From what I heard on PBS Newshour, it's highly irregular for the FBI to disclose its findings and recommendations to the DOJ in an investigation, to say nothing of commenting on and explaining them.)


Notes:
  1. I've proposed this code section because it seems to make sense to me to be the primary one considered, but I don't know or know of every statute pertaining to the handling of classified information. As far as I know, neither the FBI nor the DOJ have not identified the U.S. Code sections that it considered Mrs. Clinton may have violated. Accordingly, my proposed code section(s) above and anyone else's are purely suppositions. In any case, I trust the FBI and Dir. Comey know all the possible code sections that may or do apply to Mrs. Clinton's actions.
  2. At some point, the FBI/DOJ may release the evidence in the case. Until that happens, everything about what it shows and does not show is purely speculation on my, your, and others' part.

References:
 
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Why else might Dir. Comey have used the term "reasonable prosecutor?" Well, for one thing, he's a Republican -- a fact many folks seem to have forgotten, don't know, or just outright ignore -- so from a batshit crazy partisan Republican standpoint, Dir. Comey was pointing out he is not one of those.
 
Fenton Lum said:
Why else might Dir. Comey have used the term "reasonable prosecutor?" Well, for one thing, he's a Republican -- a fact many folks seem to have forgotten, don't know, or just outright ignore -- so from a batshit crazy partisan Republican standpoint, Dir. Comey was pointing out he is not one of those.
Click to expand...

I seriously doubt Dir. Comey aimed to or felt the need to point out whether he's a partisan Republican or not. I'm sure there are folks who are shallow enough to bother to point out things of that nature, but I am sure Dir. Comey isn't among them.
 
320 Years of History said:
The act is not culpable unless the mind is guilty. That is the meaning of the title sentence, and in common legal thought and parlance, the two central concepts of that statement are referred to as "mens rea" and "actus rea." The overall idea is fundamental to U.S. jurisprudential theory, and every lawyer and every CPA knows it. But that's legal theory. What are the implications in legal practice? In short, it means that in aiming to obtain a conviction for a non-strict liability crime (one that requires only actus rea), a prosecutor must prove, among other things, that the defendant intended to break the law s/he is charged with breaking, that is, mens rea must be shown in addition to actus rea.

Following FBI Director James Comey's announcement that the FBI is not recommending Mrs. Clinton be charged with crimes pursuant to violations of U.S. Law (not Departmental rules and procedures, which unless supported by an Executive Order, don't have the force of law) [see Note 1 at the end of this post], there has been a lot of kvetching. Republicans, in response, cry foul, saying, "It's clear as day that she violated the law. Dir. Comey laid out the ways in which she did so, yet no indictment is recommended. That's wrong."

Is it really wrong? It's not, and the following paragraphs explain why it's not. Why it's not has nothing to do with my opinion; it has everything to do with the burden of proof a prosecutor must meet to win a conviction, and absent revising the principles that govern U.S. law, that burden of proof isn't going to change.

Well, let's look at some of the laws that Mrs. Clinton may have violated:
  • 18 U.S. Code § 1924 -- Unauthorized removal and retention of classified documents or material:

    Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

  • 18 U.S. Code § 798 - Disclosure of classified information

    Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information —

    (1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or

    (2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or

    (3) concerning the communication intelligence activities of the United States or any foreign government; or

    (4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes —

    Shall be fined under this title or imprisoned not more than ten years, or both.
Looking at the two laws noted above, one notices that both are potentially in-scope and that both statutes require mens rea be shown. That settled, the next question is "did she commit acts that violated the provisions of either; is actus rea present?"

In terms of an actus rea having happened, there's no question. Mrs. Clinton did email classified information using her personal email account. That's been laid out in "black and white," and there's really nothing to argue about there, at least not among folks having any sense there's not. That leaves the element of mens rea to be established.

In determining whether mens rea exists, I, like everyone who was not directly part of the FBI investigation, have to rely on the people who were knowing how to do their job and actually doing it well and objectively when they reviewed the evidence. [See Note 2] Dir. Comey quite plainly stated yesterday that the FBI did not find evidence that Mrs. Clinton intended to break the law.

The lack of intent is why Dir. Comey remarked that no "reasonable prosecutor" would pursue this case to trial. Why? Because "reasonable prosecutors" know they don't have evidence to prove a mens rea, and they know they must have it. Lacking it, pursuing the case in court is a waste of the court's time, taxpayers' resources, and an undue burden on the defendant.

Why else might Dir. Comey have used the term "reasonable prosecutor?" Well, for one thing, he's a Republican -- a fact many folks seem to have forgotten, don't know, or just outright ignore -- so from a partisan standpoint, his views of Mrs. Clinton's candidacy are unlikely to be favorable. That said, he's also a law enforcement officer and attorney; thus, party notwithstanding, he must follow the letter and spirit of the law. He must follow its principles.

Make no mistake, however. Though he had to admit that there's no case to make in criminally prosecuting Mrs. Clinton, thereby giving her and Democrats the "bone" they most wanted, he also tossed a huge "bone" to the GOP: he "read" Mrs. Clinton "up one side and down the other," giving the GOP plenty of fodder for attacking Hillary Clinton for the remainder of the campaign. (From what I heard on PBS Newshour, it's highly irregular for the FBI to disclose its findings and recommendations to the DOJ in an investigation, to say nothing of commenting on and explaining them.)


Notes:
  1. I've proposed this code section because it seems to make sense to me to be the primary one considered, but I don't know or know of every statute pertaining to the handling of classified information. As far as I know, neither the FBI nor the DOJ have not identified the U.S. Code sections that it considered Mrs. Clinton may have violated. Accordingly, my proposed code section(s) above and anyone else's are purely suppositions. In any case, I trust the FBI and Dir. Comey know all the possible code sections that may or do apply to Mrs. Clinton's actions.
  2. At some point, the FBI/DOJ may release the evidence in the case. Until that happens, everything about what it shows and does not show is purely speculation on my, your, and others' part.

References:
Click to expand...


Sorry......Comey specifically stated that gross negligence was a felony as did Adrew McCarthy, career prosecutor and 30 year friend of Comey...they both worked for Rudy Guiliani and both he and Guiliani say comey is wrong and that hilary should have been charged.
 
And here is the prosecutor who prosecuted the first muslim terrorists who tried to knock down the Twin Towers....and got a conviction against the blind sheik......he is a 30 year friend of Comey's and he and Comey both worked for Rudy Guiliani...


This is Andrew C. McCarthy...I think he knows more than you do.....

Andrew C. McCarthy - Wikipedia, the free encyclopedia

Andrew C. McCarthy III is a columnist for National Review. He served as an Assistant United States Attorney for the Southern District of New York.[1][2][3] A Republican, he is most notable for leading the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others. The defendants were convicted of the 1993 World Trade Center bombingand planning a series of attacks against New York City landmarks.[4] He also contributed to the prosecutions of terrorists who bombed US embassies in Kenya and Tanzania. He resigned from the Justice Department in 2003.


and what does he say .....

FBI Rewrites Federal Law to Let Hillary Off the Hook

There is no way of getting around this: According to Director James Comey (disclosure: a former colleague and longtime friend of mine), Hillary Clinton checked every box required for a felony violation of Section 793(f) 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 it 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. Director Comey even conceded that former Secretary Clinton was “extremely careless” and strongly suggested that her recklessness very likely led to communications (her own and those she corresponded with) being intercepted by foreign intelligence services.

------

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 are guilty of serious wrongdoing.

The lack of intent to harm our country is irrelevant.

People never intend the bad things that happen due to gross negligence.

Read more at: FBI Rewrites Federal Law to Let Hillary Off the Hook

Read more at: FBI Rewrites Federal Law to Let Hillary Off the Hook
 
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2aguy said:
And here is the prosecutor who prosecuted the first muslim terrorists who tried to knock down the Twin Towers....and got a conviction against the blind sheik......he is a 30 year friend of Comey's and he and Comey both worked for Rudy Guiliani...


This is Andrew C. McCarthy...I think he knows more than you do.....

Andrew C. McCarthy - Wikipedia, the free encyclopedia

Andrew C. McCarthy III is a columnist for National Review. He served as an Assistant United States Attorney for the Southern District of New York.[1][2][3] A Republican, he is most notable for leading the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others. The defendants were convicted of the 1993 World Trade Center bombingand planning a series of attacks against New York City landmarks.[4] He also contributed to the prosecutions of terrorists who bombed US embassies in Kenya and Tanzania. He resigned from the Justice Department in 2003.


and what does he say .....

FBI Rewrites Federal Law to Let Hillary Off the Hook

There is no way of getting around this: According to Director James Comey (disclosure: a former colleague and longtime friend of mine), Hillary Clinton checked every box required for a felony violation of Section 793(f) 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 it 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. Director Comey even conceded that former Secretary Clinton was “extremely careless” and strongly suggested that her recklessness very likely led to communications (her own and those she corresponded with) being intercepted by foreign intelligence services.

------

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 are guilty of serious wrongdoing.

The lack of intent to harm our country is irrelevant.

People never intend the bad things that happen due to gross negligence.

Read more at: FBI Rewrites Federal Law to Let Hillary Off the Hook

Read more at: FBI Rewrites Federal Law to Let Hillary Off the Hook
Click to expand...


Here is the section of code to which you referred:

(a)
Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation, goes upon, enters, flies over, or otherwise obtains information concerning any vessel, aircraft, work of defense, navy yard, naval station, submarine base, fueling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, research laboratory or station or other place connected with the national defense owned or constructed, or in progress of construction by the United States or under the control of the United States, or of any of its officers, departments, or agencies, or within the exclusive jurisdiction of the United States, or any place in which any vessel, aircraft, arms, munitions, or other materials or instruments for use in time of war are being made, prepared, repaired, stored, or are the subject of research or development, under any contract or agreement with the United States, or any department or agency thereof, or with any person on behalf of the United States, or otherwise on behalf of the United States, or any prohibited place so designated by the President by proclamation in time of war or in case of national emergency in which anything for the use of the Army, Navy, or Air Force is being prepared or constructed or stored, information as to which prohibited place the President has determined would be prejudicial to the national defense; or

(b)
Whoever, for the purpose aforesaid, and with like intent or reason to believe, copies, takes, makes, or obtains, or attempts to copy, take, make, or obtain, any sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of anything connected with the national defense; or

(c)
Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note, of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this chapter; or

(d)
Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or

(e)
Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or

(f)
Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—
Shall be fined under this title or imprisoned not more than ten years, or both.

(g)
If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.
​
Reading that section of code one finds the mens rea requirement in subsections a, b, d and e. Subsection c doesn't apply to what happened with her emails/servier and neither does subsection f. Nobody rewrote anything.
 
"Why it's not has nothing to do with my opinion; it has everything to do with the burden of proof a prosecutor must meet to win a conviction, and absent revising the principles that govern U.S. law, that burden of proof isn't going to change."

Correct.

Of course, politics is adversarial and partisan – often predicated on subjective personal opinion, not the facts; and clearly not the facts of law, as in this case.

This puts republicans and conservatives, of course, in the untenable positon of opposing this settled and accepted principle of law – a principle which is beyond dispute.

In essence they’re advocating that Americans be presumed guilty and forced to ‘prove’ that they are innocent.

Indeed, on this very forum, we had a rightist demand that even if no indictment was recommended to Justice, Clinton should nonetheless be ‘compelled’ to ‘stand trial,’ absent a formal indictment by a grand jury.

Setting aside for the moment the impossible legal mechanics of this, its ignorance of the law, and the fact that this violates the Fifth Amendment, what we’re witnessing is conservatives unwittingly calling for the authorization of political prisoners – where political opponents and enemies of the right would be subject to arrest and trial absent the legal standard to do so, contrary to our most fundamental tenets of the rule of law.

Conservatives need to step back from this and clear their heads of the unwarranted hatred they have for Clinton which has blinded them to the fact that what they advocate violates the Constitution and the rule of law.
 
320 Years of History said:
The act is not culpable unless the mind is guilty. That is the meaning of the title sentence, and in common legal thought and parlance, the two central concepts of that statement are referred to as "mens rea" and "actus rea." The overall idea is fundamental to U.S. jurisprudential theory, and every lawyer and every CPA knows it. But that's legal theory. What are the implications in legal practice? In short, it means that in aiming to obtain a conviction for a non-strict liability crime (one that requires only actus rea), a prosecutor must prove, among other things, that the defendant intended to break the law s/he is charged with breaking, that is, mens rea must be shown in addition to actus rea.

Following FBI Director James Comey's announcement that the FBI is not recommending Mrs. Clinton be charged with crimes pursuant to violations of U.S. Law (not Departmental rules and procedures, which unless supported by an Executive Order, don't have the force of law) [see Note 1 at the end of this post], there has been a lot of kvetching. Republicans, in response, cry foul, saying, "It's clear as day that she violated the law. Dir. Comey laid out the ways in which she did so, yet no indictment is recommended. That's wrong."

Is it really wrong? It's not, and the following paragraphs explain why it's not. Why it's not has nothing to do with my opinion; it has everything to do with the burden of proof a prosecutor must meet to win a conviction, and absent revising the principles that govern U.S. law, that burden of proof isn't going to change.

Well, let's look at some of the laws that Mrs. Clinton may have violated:
  • 18 U.S. Code § 1924 -- Unauthorized removal and retention of classified documents or material:

    Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

  • 18 U.S. Code § 798 - Disclosure of classified information

    Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information —

    (1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or

    (2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or

    (3) concerning the communication intelligence activities of the United States or any foreign government; or

    (4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes —

    Shall be fined under this title or imprisoned not more than ten years, or both.
Looking at the two laws noted above, one notices that both are potentially in-scope and that both statutes require mens rea be shown. That settled, the next question is "did she commit acts that violated the provisions of either; is actus rea present?"

In terms of an actus rea having happened, there's no question. Mrs. Clinton did email classified information using her personal email account. That's been laid out in "black and white," and there's really nothing to argue about there, at least not among folks having any sense there's not. That leaves the element of mens rea to be established.

In determining whether mens rea exists, I, like everyone who was not directly part of the FBI investigation, have to rely on the people who were knowing how to do their job and actually doing it well and objectively when they reviewed the evidence. [See Note 2] Dir. Comey quite plainly stated yesterday that the FBI did not find evidence that Mrs. Clinton intended to break the law.

The lack of intent is why Dir. Comey remarked that no "reasonable prosecutor" would pursue this case to trial. Why? Because "reasonable prosecutors" know they don't have evidence to prove a mens rea, and they know they must have it. Lacking it, pursuing the case in court is a waste of the court's time, taxpayers' resources, and an undue burden on the defendant.

Why else might Dir. Comey have used the term "reasonable prosecutor?" Well, for one thing, he's a Republican -- a fact many folks seem to have forgotten, don't know, or just outright ignore -- so from a partisan standpoint, his views of Mrs. Clinton's candidacy are unlikely to be favorable. That said, he's also a law enforcement officer and attorney; thus, party notwithstanding, he must follow the letter and spirit of the law. He must follow its principles.

Make no mistake, however. Though he had to admit that there's no case to make in criminally prosecuting Mrs. Clinton, thereby giving her and Democrats the "bone" they most wanted, he also tossed a huge "bone" to the GOP: he "read" Mrs. Clinton "up one side and down the other," giving the GOP plenty of fodder for attacking Hillary Clinton for the remainder of the campaign. (From what I heard on PBS Newshour, it's highly irregular for the FBI to disclose its findings and recommendations to the DOJ in an investigation, to say nothing of commenting on and explaining them.)


Notes:
  1. I've proposed this code section because it seems to make sense to me to be the primary one considered, but I don't know or know of every statute pertaining to the handling of classified information. As far as I know, neither the FBI nor the DOJ have not identified the U.S. Code sections that it considered Mrs. Clinton may have violated. Accordingly, my proposed code section(s) above and anyone else's are purely suppositions. In any case, I trust the FBI and Dir. Comey know all the possible code sections that may or do apply to Mrs. Clinton's actions.
  2. At some point, the FBI/DOJ may release the evidence in the case. Until that happens, everything about what it shows and does not show is purely speculation on my, your, and others' part.

References:
Click to expand...



Title 18 code 793 of the US code is one of the few federal laws that doesn't require intent.

In fact Section F SPECIFICALLY makes gross negligence a crime

(f)
Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

Shall be fined under this title or imprisoned not more than ten years, or both.

XXXXXXXXXXXXXXXX
 
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Fair&Balanced said:
320 Years of History said:
The act is not culpable unless the mind is guilty. That is the meaning of the title sentence, and in common legal thought and parlance, the two central concepts of that statement are referred to as "mens rea" and "actus rea." The overall idea is fundamental to U.S. jurisprudential theory, and every lawyer and every CPA knows it. But that's legal theory. What are the implications in legal practice? In short, it means that in aiming to obtain a conviction for a non-strict liability crime (one that requires only actus rea), a prosecutor must prove, among other things, that the defendant intended to break the law s/he is charged with breaking, that is, mens rea must be shown in addition to actus rea.

Following FBI Director James Comey's announcement that the FBI is not recommending Mrs. Clinton be charged with crimes pursuant to violations of U.S. Law (not Departmental rules and procedures, which unless supported by an Executive Order, don't have the force of law) [see Note 1 at the end of this post], there has been a lot of kvetching. Republicans, in response, cry foul, saying, "It's clear as day that she violated the law. Dir. Comey laid out the ways in which she did so, yet no indictment is recommended. That's wrong."

Is it really wrong? It's not, and the following paragraphs explain why it's not. Why it's not has nothing to do with my opinion; it has everything to do with the burden of proof a prosecutor must meet to win a conviction, and absent revising the principles that govern U.S. law, that burden of proof isn't going to change.

Well, let's look at some of the laws that Mrs. Clinton may have violated:
  • 18 U.S. Code § 1924 -- Unauthorized removal and retention of classified documents or material:

    Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

  • 18 U.S. Code § 798 - Disclosure of classified information

    Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information —

    (1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or

    (2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or

    (3) concerning the communication intelligence activities of the United States or any foreign government; or

    (4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes —

    Shall be fined under this title or imprisoned not more than ten years, or both.
Looking at the two laws noted above, one notices that both are potentially in-scope and that both statutes require mens rea be shown. That settled, the next question is "did she commit acts that violated the provisions of either; is actus rea present?"

In terms of an actus rea having happened, there's no question. Mrs. Clinton did email classified information using her personal email account. That's been laid out in "black and white," and there's really nothing to argue about there, at least not among folks having any sense there's not. That leaves the element of mens rea to be established.

In determining whether mens rea exists, I, like everyone who was not directly part of the FBI investigation, have to rely on the people who were knowing how to do their job and actually doing it well and objectively when they reviewed the evidence. [See Note 2] Dir. Comey quite plainly stated yesterday that the FBI did not find evidence that Mrs. Clinton intended to break the law.

The lack of intent is why Dir. Comey remarked that no "reasonable prosecutor" would pursue this case to trial. Why? Because "reasonable prosecutors" know they don't have evidence to prove a mens rea, and they know they must have it. Lacking it, pursuing the case in court is a waste of the court's time, taxpayers' resources, and an undue burden on the defendant.

Why else might Dir. Comey have used the term "reasonable prosecutor?" Well, for one thing, he's a Republican -- a fact many folks seem to have forgotten, don't know, or just outright ignore -- so from a partisan standpoint, his views of Mrs. Clinton's candidacy are unlikely to be favorable. That said, he's also a law enforcement officer and attorney; thus, party notwithstanding, he must follow the letter and spirit of the law. He must follow its principles.

Make no mistake, however. Though he had to admit that there's no case to make in criminally prosecuting Mrs. Clinton, thereby giving her and Democrats the "bone" they most wanted, he also tossed a huge "bone" to the GOP: he "read" Mrs. Clinton "up one side and down the other," giving the GOP plenty of fodder for attacking Hillary Clinton for the remainder of the campaign. (From what I heard on PBS Newshour, it's highly irregular for the FBI to disclose its findings and recommendations to the DOJ in an investigation, to say nothing of commenting on and explaining them.)


Notes:
  1. I've proposed this code section because it seems to make sense to me to be the primary one considered, but I don't know or know of every statute pertaining to the handling of classified information. As far as I know, neither the FBI nor the DOJ have not identified the U.S. Code sections that it considered Mrs. Clinton may have violated. Accordingly, my proposed code section(s) above and anyone else's are purely suppositions. In any case, I trust the FBI and Dir. Comey know all the possible code sections that may or do apply to Mrs. Clinton's actions.
  2. At some point, the FBI/DOJ may release the evidence in the case. Until that happens, everything about what it shows and does not show is purely speculation on my, your, and others' part.

References:
Click to expand...



Title 18 code 793 of the US code is one of the few federal laws that doesn't require intent.

In fact Section F SPECIFICALLY makes gross negligence a crime

(f)
Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

Shall be fined under this title or imprisoned not more than ten years, or both.

No matter what section you post this in, you're still an idiot if you don't recognize that that is the law.
Click to expand...


And that is what Andrew C. McCarthy, former federal prosecutor pointed out as well as Rudy Guiliani...former federal prosecutor....they both know comey and were both disappointed in what he did here....
 
2aguy said:
Fair&Balanced said:
320 Years of History said:
The act is not culpable unless the mind is guilty. That is the meaning of the title sentence, and in common legal thought and parlance, the two central concepts of that statement are referred to as "mens rea" and "actus rea." The overall idea is fundamental to U.S. jurisprudential theory, and every lawyer and every CPA knows it. But that's legal theory. What are the implications in legal practice? In short, it means that in aiming to obtain a conviction for a non-strict liability crime (one that requires only actus rea), a prosecutor must prove, among other things, that the defendant intended to break the law s/he is charged with breaking, that is, mens rea must be shown in addition to actus rea.

Following FBI Director James Comey's announcement that the FBI is not recommending Mrs. Clinton be charged with crimes pursuant to violations of U.S. Law (not Departmental rules and procedures, which unless supported by an Executive Order, don't have the force of law) [see Note 1 at the end of this post], there has been a lot of kvetching. Republicans, in response, cry foul, saying, "It's clear as day that she violated the law. Dir. Comey laid out the ways in which she did so, yet no indictment is recommended. That's wrong."

Is it really wrong? It's not, and the following paragraphs explain why it's not. Why it's not has nothing to do with my opinion; it has everything to do with the burden of proof a prosecutor must meet to win a conviction, and absent revising the principles that govern U.S. law, that burden of proof isn't going to change.

Well, let's look at some of the laws that Mrs. Clinton may have violated:
  • 18 U.S. Code § 1924 -- Unauthorized removal and retention of classified documents or material:

    Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

  • 18 U.S. Code § 798 - Disclosure of classified information

    Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information —

    (1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or

    (2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or

    (3) concerning the communication intelligence activities of the United States or any foreign government; or

    (4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes —

    Shall be fined under this title or imprisoned not more than ten years, or both.
Looking at the two laws noted above, one notices that both are potentially in-scope and that both statutes require mens rea be shown. That settled, the next question is "did she commit acts that violated the provisions of either; is actus rea present?"

In terms of an actus rea having happened, there's no question. Mrs. Clinton did email classified information using her personal email account. That's been laid out in "black and white," and there's really nothing to argue about there, at least not among folks having any sense there's not. That leaves the element of mens rea to be established.

In determining whether mens rea exists, I, like everyone who was not directly part of the FBI investigation, have to rely on the people who were knowing how to do their job and actually doing it well and objectively when they reviewed the evidence. [See Note 2] Dir. Comey quite plainly stated yesterday that the FBI did not find evidence that Mrs. Clinton intended to break the law.

The lack of intent is why Dir. Comey remarked that no "reasonable prosecutor" would pursue this case to trial. Why? Because "reasonable prosecutors" know they don't have evidence to prove a mens rea, and they know they must have it. Lacking it, pursuing the case in court is a waste of the court's time, taxpayers' resources, and an undue burden on the defendant.

Why else might Dir. Comey have used the term "reasonable prosecutor?" Well, for one thing, he's a Republican -- a fact many folks seem to have forgotten, don't know, or just outright ignore -- so from a partisan standpoint, his views of Mrs. Clinton's candidacy are unlikely to be favorable. That said, he's also a law enforcement officer and attorney; thus, party notwithstanding, he must follow the letter and spirit of the law. He must follow its principles.

Make no mistake, however. Though he had to admit that there's no case to make in criminally prosecuting Mrs. Clinton, thereby giving her and Democrats the "bone" they most wanted, he also tossed a huge "bone" to the GOP: he "read" Mrs. Clinton "up one side and down the other," giving the GOP plenty of fodder for attacking Hillary Clinton for the remainder of the campaign. (From what I heard on PBS Newshour, it's highly irregular for the FBI to disclose its findings and recommendations to the DOJ in an investigation, to say nothing of commenting on and explaining them.)


Notes:
  1. I've proposed this code section because it seems to make sense to me to be the primary one considered, but I don't know or know of every statute pertaining to the handling of classified information. As far as I know, neither the FBI nor the DOJ have not identified the U.S. Code sections that it considered Mrs. Clinton may have violated. Accordingly, my proposed code section(s) above and anyone else's are purely suppositions. In any case, I trust the FBI and Dir. Comey know all the possible code sections that may or do apply to Mrs. Clinton's actions.
  2. At some point, the FBI/DOJ may release the evidence in the case. Until that happens, everything about what it shows and does not show is purely speculation on my, your, and others' part.

References:
Click to expand...



Title 18 code 793 of the US code is one of the few federal laws that doesn't require intent.

In fact Section F SPECIFICALLY makes gross negligence a crime

(f)
Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

Shall be fined under this title or imprisoned not more than ten years, or both.

No matter what section you post this in, you're still an idiot if you don't recognize that that is the law.
Click to expand...


And that is what Andrew C. McCarthy, former federal prosecutor pointed out as well as Rudy Guiliani...former federal prosecutor....they both know comey and were both disappointed in what he did here....
Click to expand...


There have been SEVERAL people convicted for less. It's just bizzare. I've had a security clearance for several years, and the FBI makes sure you are aware of this. Hillary signed a document no different than anyone else who carries a security clearance which indicates she is aware of her responsibilities RE classified material.

Now, I didn't expect an indictment, because let's face it Obama most certainly emailed Hillary classified material and that would make him also guilty of a crime and that won't be made public. But these rubes out here who want to ignore the fact that she ABSOLUTELY broke the law are just ridiculous.
 
Fair&Balanced said:
2aguy said:
Fair&Balanced said:
320 Years of History said:
The act is not culpable unless the mind is guilty. That is the meaning of the title sentence, and in common legal thought and parlance, the two central concepts of that statement are referred to as "mens rea" and "actus rea." The overall idea is fundamental to U.S. jurisprudential theory, and every lawyer and every CPA knows it. But that's legal theory. What are the implications in legal practice? In short, it means that in aiming to obtain a conviction for a non-strict liability crime (one that requires only actus rea), a prosecutor must prove, among other things, that the defendant intended to break the law s/he is charged with breaking, that is, mens rea must be shown in addition to actus rea.

Following FBI Director James Comey's announcement that the FBI is not recommending Mrs. Clinton be charged with crimes pursuant to violations of U.S. Law (not Departmental rules and procedures, which unless supported by an Executive Order, don't have the force of law) [see Note 1 at the end of this post], there has been a lot of kvetching. Republicans, in response, cry foul, saying, "It's clear as day that she violated the law. Dir. Comey laid out the ways in which she did so, yet no indictment is recommended. That's wrong."

Is it really wrong? It's not, and the following paragraphs explain why it's not. Why it's not has nothing to do with my opinion; it has everything to do with the burden of proof a prosecutor must meet to win a conviction, and absent revising the principles that govern U.S. law, that burden of proof isn't going to change.

Well, let's look at some of the laws that Mrs. Clinton may have violated:
  • 18 U.S. Code § 1924 -- Unauthorized removal and retention of classified documents or material:

    Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

  • 18 U.S. Code § 798 - Disclosure of classified information

    Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information —

    (1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or

    (2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or

    (3) concerning the communication intelligence activities of the United States or any foreign government; or

    (4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes —

    Shall be fined under this title or imprisoned not more than ten years, or both.
Looking at the two laws noted above, one notices that both are potentially in-scope and that both statutes require mens rea be shown. That settled, the next question is "did she commit acts that violated the provisions of either; is actus rea present?"

In terms of an actus rea having happened, there's no question. Mrs. Clinton did email classified information using her personal email account. That's been laid out in "black and white," and there's really nothing to argue about there, at least not among folks having any sense there's not. That leaves the element of mens rea to be established.

In determining whether mens rea exists, I, like everyone who was not directly part of the FBI investigation, have to rely on the people who were knowing how to do their job and actually doing it well and objectively when they reviewed the evidence. [See Note 2] Dir. Comey quite plainly stated yesterday that the FBI did not find evidence that Mrs. Clinton intended to break the law.

The lack of intent is why Dir. Comey remarked that no "reasonable prosecutor" would pursue this case to trial. Why? Because "reasonable prosecutors" know they don't have evidence to prove a mens rea, and they know they must have it. Lacking it, pursuing the case in court is a waste of the court's time, taxpayers' resources, and an undue burden on the defendant.

Why else might Dir. Comey have used the term "reasonable prosecutor?" Well, for one thing, he's a Republican -- a fact many folks seem to have forgotten, don't know, or just outright ignore -- so from a partisan standpoint, his views of Mrs. Clinton's candidacy are unlikely to be favorable. That said, he's also a law enforcement officer and attorney; thus, party notwithstanding, he must follow the letter and spirit of the law. He must follow its principles.

Make no mistake, however. Though he had to admit that there's no case to make in criminally prosecuting Mrs. Clinton, thereby giving her and Democrats the "bone" they most wanted, he also tossed a huge "bone" to the GOP: he "read" Mrs. Clinton "up one side and down the other," giving the GOP plenty of fodder for attacking Hillary Clinton for the remainder of the campaign. (From what I heard on PBS Newshour, it's highly irregular for the FBI to disclose its findings and recommendations to the DOJ in an investigation, to say nothing of commenting on and explaining them.)


Notes:
  1. I've proposed this code section because it seems to make sense to me to be the primary one considered, but I don't know or know of every statute pertaining to the handling of classified information. As far as I know, neither the FBI nor the DOJ have not identified the U.S. Code sections that it considered Mrs. Clinton may have violated. Accordingly, my proposed code section(s) above and anyone else's are purely suppositions. In any case, I trust the FBI and Dir. Comey know all the possible code sections that may or do apply to Mrs. Clinton's actions.
  2. At some point, the FBI/DOJ may release the evidence in the case. Until that happens, everything about what it shows and does not show is purely speculation on my, your, and others' part.

References:
Click to expand...



Title 18 code 793 of the US code is one of the few federal laws that doesn't require intent.

In fact Section F SPECIFICALLY makes gross negligence a crime

(f)
Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

Shall be fined under this title or imprisoned not more than ten years, or both.

No matter what section you post this in, you're still an idiot if you don't recognize that that is the law.
Click to expand...


And that is what Andrew C. McCarthy, former federal prosecutor pointed out as well as Rudy Guiliani...former federal prosecutor....they both know comey and were both disappointed in what he did here....
Click to expand...


There have been SEVERAL people convicted for less. It's just bizzare. I've had a security clearance for several years, and the FBI makes sure you are aware of this. Hillary signed a document no different than anyone else who carries a security clearance which indicates she is aware of her responsibilities RE classified material.

Now, I didn't expect an indictment, because let's face it Obama most certainly emailed Hillary classified material and that would make him also guilty of a crime and that won't be made public. But these rubes out here who want to ignore the fact that she ABSOLUTELY broke the law are just ridiculous.
Click to expand...


Yes......thank you for your post...the post by 320 was irritating....and of course didn't cover the actual area that comey mentioned.....
 
Sunni Man said:
When I grew up........ignorance of the law wasn't a valid legal excuse.

Times have changed....... :cool:
Click to expand...


No....it still isn't a valid excuse...unless you are a clinton running for office...
 
Sunni Man said:
When I grew up........ignorance of the law wasn't a valid legal excuse.

Times have changed....... :cool:
Click to expand...


They aren't claiming she was ignorant of the law, they are essentially saying "yes she violated the law, but it wasn't intentional" when the law itself is VERY clear. Intent doesn't matter. It's not like say murder where if you accidentally shoot a person and kill them, that's not murder, that's negligent homicide. There is no negligent espionage. There is simply espionage. And I can guarantee you that Hillary Clinton didn't get the one FBI briefing in history that didn't explain that portion of the law in great detail.
 
Fair&Balanced said:
Sunni Man said:
When I grew up........ignorance of the law wasn't a valid legal excuse.

Times have changed....... :cool:
Click to expand...


They aren't claiming she was ignorant of the law, they are essentially saying "yes she violated the law, but it wasn't intentional" when the law itself is VERY clear. Intent doesn't matter. It's not like say murder where if you accidentally shoot a person and kill them, that's not murder, that's negligent homicide. There is no negligent espionage. There is simply espionage. And I can guarantee you that Hillary Clinton didn't get the one FBI briefing in history that didn't explain that portion of the law in great detail.
Click to expand...
I'm quite sure Comey explained that there are rarely SUCCESSFUL prosecutions of violations such as Clinton's that did not include intent. Not that she couldn't have been prosecuted, but that the courts tend not to find them guilty. I'm not a lawyer, but that's what I heard.
 
OldLady said:
Fair&Balanced said:
Sunni Man said:
When I grew up........ignorance of the law wasn't a valid legal excuse.

Times have changed....... :cool:
Click to expand...


They aren't claiming she was ignorant of the law, they are essentially saying "yes she violated the law, but it wasn't intentional" when the law itself is VERY clear. Intent doesn't matter. It's not like say murder where if you accidentally shoot a person and kill them, that's not murder, that's negligent homicide. There is no negligent espionage. There is simply espionage. And I can guarantee you that Hillary Clinton didn't get the one FBI briefing in history that didn't explain that portion of the law in great detail.
Click to expand...
I'm quite sure Comey explained that there are rarely SUCCESSFUL prosecutions of violations such as Clinton's that did not include intent. Not that she couldn't have been prosecuted, but that the courts tend not to find them guilty. I'm not a lawyer, but that's what I heard.
Click to expand...

And that isn't Comey's job. His job is to determine whether a law was likely broken. He admitted a law was broken. Then the DA determines "can we make this case?" So , he took the bullet for Lynch? Probably, either way the police, or in this case the FBI, are not who decides whether a case is solid enough to take to court. They merely determine whether a law was broken or not.
 
Fair&Balanced said:
320 Years of History said:
The act is not culpable unless the mind is guilty. That is the meaning of the title sentence, and in common legal thought and parlance, the two central concepts of that statement are referred to as "mens rea" and "actus rea." The overall idea is fundamental to U.S. jurisprudential theory, and every lawyer and every CPA knows it. But that's legal theory. What are the implications in legal practice? In short, it means that in aiming to obtain a conviction for a non-strict liability crime (one that requires only actus rea), a prosecutor must prove, among other things, that the defendant intended to break the law s/he is charged with breaking, that is, mens rea must be shown in addition to actus rea.

Following FBI Director James Comey's announcement that the FBI is not recommending Mrs. Clinton be charged with crimes pursuant to violations of U.S. Law (not Departmental rules and procedures, which unless supported by an Executive Order, don't have the force of law) [see Note 1 at the end of this post], there has been a lot of kvetching. Republicans, in response, cry foul, saying, "It's clear as day that she violated the law. Dir. Comey laid out the ways in which she did so, yet no indictment is recommended. That's wrong."

Is it really wrong? It's not, and the following paragraphs explain why it's not. Why it's not has nothing to do with my opinion; it has everything to do with the burden of proof a prosecutor must meet to win a conviction, and absent revising the principles that govern U.S. law, that burden of proof isn't going to change.

Well, let's look at some of the laws that Mrs. Clinton may have violated:
  • 18 U.S. Code § 1924 -- Unauthorized removal and retention of classified documents or material:

    Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

  • 18 U.S. Code § 798 - Disclosure of classified information

    Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information —

    (1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or

    (2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or

    (3) concerning the communication intelligence activities of the United States or any foreign government; or

    (4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes —

    Shall be fined under this title or imprisoned not more than ten years, or both.
Looking at the two laws noted above, one notices that both are potentially in-scope and that both statutes require mens rea be shown. That settled, the next question is "did she commit acts that violated the provisions of either; is actus rea present?"

In terms of an actus rea having happened, there's no question. Mrs. Clinton did email classified information using her personal email account. That's been laid out in "black and white," and there's really nothing to argue about there, at least not among folks having any sense there's not. That leaves the element of mens rea to be established.

In determining whether mens rea exists, I, like everyone who was not directly part of the FBI investigation, have to rely on the people who were knowing how to do their job and actually doing it well and objectively when they reviewed the evidence. [See Note 2] Dir. Comey quite plainly stated yesterday that the FBI did not find evidence that Mrs. Clinton intended to break the law.

The lack of intent is why Dir. Comey remarked that no "reasonable prosecutor" would pursue this case to trial. Why? Because "reasonable prosecutors" know they don't have evidence to prove a mens rea, and they know they must have it. Lacking it, pursuing the case in court is a waste of the court's time, taxpayers' resources, and an undue burden on the defendant.

Why else might Dir. Comey have used the term "reasonable prosecutor?" Well, for one thing, he's a Republican -- a fact many folks seem to have forgotten, don't know, or just outright ignore -- so from a partisan standpoint, his views of Mrs. Clinton's candidacy are unlikely to be favorable. That said, he's also a law enforcement officer and attorney; thus, party notwithstanding, he must follow the letter and spirit of the law. He must follow its principles.

Make no mistake, however. Though he had to admit that there's no case to make in criminally prosecuting Mrs. Clinton, thereby giving her and Democrats the "bone" they most wanted, he also tossed a huge "bone" to the GOP: he "read" Mrs. Clinton "up one side and down the other," giving the GOP plenty of fodder for attacking Hillary Clinton for the remainder of the campaign. (From what I heard on PBS Newshour, it's highly irregular for the FBI to disclose its findings and recommendations to the DOJ in an investigation, to say nothing of commenting on and explaining them.)


Notes:
  1. I've proposed this code section because it seems to make sense to me to be the primary one considered, but I don't know or know of every statute pertaining to the handling of classified information. As far as I know, neither the FBI nor the DOJ have not identified the U.S. Code sections that it considered Mrs. Clinton may have violated. Accordingly, my proposed code section(s) above and anyone else's are purely suppositions. In any case, I trust the FBI and Dir. Comey know all the possible code sections that may or do apply to Mrs. Clinton's actions.
  2. At some point, the FBI/DOJ may release the evidence in the case. Until that happens, everything about what it shows and does not show is purely speculation on my, your, and others' part.

References:
Click to expand...

Title 18 code 793 of the US code is one of the few federal laws that doesn't require intent.

In fact Section F SPECIFICALLY makes gross negligence a crime

(f)
Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

Shall be fined under this title or imprisoned not more than ten years, or both.

No matter what section you post this in, you're still an idiot if you don't recognize that that is the law.
Click to expand...


Read the statute carefully...I'll simplify it for you:
First, you'll note that the U.S. Code section is 18 U.S. Code § 793 - Gathering, transmitting or losing defense information. The specific language of Subsection 793(f), says:

Whoever, being entrusted with or having lawful possession or control of any document....or information, relating to the national defense,...through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust...Shall be fined under this title or imprisoned not more than ten years, or both.​

For someone to be convicted under Subsection 793(f), one would have to remove a document/information from its place of custody or delivered to someone not authorized to receive it.
  • What clear evidence is there that a document or information was removed from it's proper place of custody? None.
    • There is no clear evidence that the government has lost any classified information or that any was removed from its proper place of custody.
      • An email repository/system is not a "proper place of custody" for documents or information and it is not a place of information creation, nor is an email repository/system a place of original document creation, other than for emails. People who have access to information pertaining to their job will necessarily discuss that information. Email is used to discuss information that exists elsewhere; it's a mode of conversation.
  • What clear evidence is there that a document or information was delivered to someone who should not have received it? None.
    • There is no clear evidence that Mrs. Clinton's email system or documents were hacked or accessed by anyone who lacked authorization to access to it.
    • There is no clear evidence that Mrs. Clinton was what might be called a "double agent" who delivered information.
  • "National defense" -- Strictly speaking, this refers to the ability of the armed forces to defend the sovereignty of the nation and the lives of its people. Absent knowing what the content of the email discussions were, I have no way to know whether the classified information discussed in the emails pertained to national defense.
Given the above, the violation must be within the scope of the Code itself, that is, it must pertain to defense information, information related to the armed forces. As noted, whether the information/document pertains to the armed forces is determined by the content of the document or information. Assuming the violation is within the scope of Subsection 793(f), the next thing a prosecutor must do is produce clear evidence that the Code has in fact been violated. Given the "gross negligence" standard, that clear evidence need only be of actus rea, that is that the violation occurred, not that a person intended to commit the act, knew they were committing the act, and so on.

According to Dir. Comey, the FBI, even assuming email content pertains to national defense/armed forces, quite simply did not find clear evidence that information/documents were removed from it's proper place of custody and it did not find that someone received classified information/documents from Mrs. Clinton.

Despite what you and others want to be so, Dir. Comey and his team at the FBI have repeatedly noted that the prosecutability of Mrs. Clinton revolves around both actus rea and mens rea. In other words, there must be evidence of the act and the intent. Now given that Subsection 793(f) does not require mens rea, one must infer that Subsection 793(f) isn't the Code section that applied to Mrs. Clinton's acts. Why? Because she didn't do what the Code subsection say she'd need to have done in order to be in violation of it.

So, what is going on such that folks are citing Subsection 793(f)'s gross negligence in connection with what Mrs. Clinton did? Well, from what I can tell, folks want to see her prosecuted for violating the provisions of Subsections 1924 and 798 by applying only the gross negligence standard of 793(f) to the commission of the acts in those other two subsections, and do so without also applying the mens rea standard of those other two sections. Well, that's just not how the law works. One does not get to "cherry pick" the provisions of one Code section and mesh them with the burden of proof from another.

Sidebar:
It is worth noting the following regarding mens rea:
While the nomenclature used by federal courts varies widely, mens rea is generally categorized in descending order of culpability as follows:
  1. Specific intent, perhaps the highest level of intent, requires conduct that is "knowing, purposeful, and willful" as well as factual knowledge of the law or regulation;
  2. General intent, where the conduct is "knowing," that is, the person may not know that the conduct was against the law, but intentionally committed the act in question;
  3. Negligence, where the person failed to take reasonable steps to prevent the conduct, or was "willfully blind," "consciously avoided," or "reckless" regarding the consequences of their conduct; and
  4. Strict liability, where criminal liability can be imposed even though the actor had no mens rea or intent to commit the offense, and was not negligent. [What the GOP want to do re: Mrs. Clinton is confound, transform and pursue prosecution of specific intent acts as strict liability acts.]
The Model Penal Code (MPC) has categorized criminal intent, from most to least culpable, as follows: (1) purpose, (2) knowledge, (3) recklessness, (4) negligence, and (5) strict liability. As the Supreme Court has noted, "`purpose' corresponds loosely with the common-law concept of specific intent, while `knowledge' corresponds loosely with the concept of general intent." While most States have adopted the MPC's classifications of mens rea, Congress has not done so, thus leaving the federal law in this area more confusing than it need be. (See also Kenneth W. Simons, "Should the Model Penal Code's Mens Rea Provisions Be Amended?")
End of sidebar.​
End of sidebar.
 
I don't know if any of you have been listening to House hearing today, but if you give a damn about this topic, you should. Many of the concerns folks are expressing are being discussed in that hearing.
 
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