Fair&Balanced
Gold Member
- Apr 12, 2016
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- #21
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:
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?"
- 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.
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:
- 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.
- 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:
- THE CONCEPT OF MENS REA IN THE CRIMINAL LAW
- The Jury Made the Correct Decision in the Casey Anthony Capital Murder Trial: Addressing the Requirements for Establishing Criminal Culpability (used for its discussion of actus rea and mens rea, not for content pertaining specifically to Ms. Anthony's charges)
- Actus Non Facit Reum Nisi Mens Sit Rea
- General Intent Crimes vs. Specific Intent Crimes
- We Fact Checked Trump’s Claim That ‘Virtually Every Single’ Legal Expert Believes Clinton Committed a Crime (content written prior the FBI's announcement on 5-July-2016)
- The Protection of Classified Information: The Legal Framework
- Charges in Classified Information and National Security Cases
- Mens rea - Intention
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.
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.
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.
- 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.
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:End of sidebar.
While the nomenclature used by federal courts varies widely, mens rea is generally categorized in descending order of culpability as follows: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?")
- 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;
- 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;
- 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
- 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.]
End of sidebar.
320 , in 2008 BRYAN NISHIMURA plead guilty to a misdemeanor for storing classified material on his private electronic device. Meaning he plead guilty to a crime, meaning he was charged with a crime. How did they charge him with a CRIME if it wasn't ILLEGAL?
And Comey himself said Clinton was NEGLIGENT in the way she handled classified material. Negligent with classified material equals a crime as per the statute.
