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So in effect, Ms. Clinton had an unauthorized, unsecure email server and knew that she would be sending and receiving classified information through it, but there is no provable intent to improperly store classified material on an unsecured server?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
I am glad I did not spend my whole life studying law. I would have had to in order to understand what this is talking about.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
Hillary is a woman and therefore it is unfathomable if she actually "knew" anything.So in effect, Ms. Clinton had an unauthorized, unsecure email server and knew that she would be sending and receiving classified information through it, but there is no provable intent to improperly store classified material on an unsecured server?
Lol, is that a Jedi Mind Trick or what you got going there?
So, you hinge your entire argument on whether a Secretary of State would reasonably know that she would receive classified information through her emails, and that her unsecured server would be an inappropriate way of storing said classified information despite her repeated feedback from the State Department IT folks, the IG, and any and all classified document training that presumably her Royal Highness has had in her illustrious career of ruling over the American people?Illustration of the lack of integrity at least one Congressperson showed before the whole world:
Part of the "imputed mens rea" exchange was included the following (C= Congressperson; D = Director Comey)...
That's how the material portion of the exchange between the Congressman and Dir. Comey ends.
- C:
- "DID SHE THEN HAVE THE INTENT TO RETAIN SUCH MATERIAL AS AN UNAUTHORIZED LOCATION? SHE RESTAINED [sic] THE MATERIAL SHE RECEIVED AS SECRETARY OF STATE AT HER SERVER IN HER BASEMENT AND THAT WAS UNAUTHORIZED."
- D:
"[Do you mean] DID SHE HAVE THE INTENT TO RETAIN CLASSIFIED INFORMATION ON THE SERVER OR JUST TO RETAIN ANY INFORMATION ON THE SERVER?"
- C:
WELL, WE'VE ALREADY ESTABLISHED THAT SHE KNEW AS SECRETARY OF STATE THAT SHE WAS GOING TO RECEIVE CLASSIFIED INFORMATION IN HER E-MAILS. SO DID SHE RETAIN SUCH INFORMATION THAT SHE RECEIVED AS SECRETARY OF STATE ON HER SERVERS IN HER BASEMENT?
- D:
SHE DID IN FACT -- THERE IS, IN MY VIEW, NOT EVIDENCE BEYOND CERTAINLY PROBABLE CAUSE. THERE'S NOT EVIDENCE BEYOND A REASONABLE DOUBT THAT SHE KNEW SHE WAS RECEIVING CLASSIFIED INFORMATION OR THAT SHE INTENDED TO RETAIN IT ON HER SERVER. THERE IS EVIDENCE OF THAT, BUT WHEN I SAID THERE'S NOT CLEAR EVIDENCE OF INTENT, THAT'S WHAT I MEANT. I COULD NOT, EVEN IF THE DEPARTMENT OF JUSTICE WOULD BRING THAT CASE, I COULD NOT PROVE BEYOND A REASONABLE DOUBT THOSE TWO ELEMENTS.
That works for me.
Not Guilty.
End of story.
Unlike Her Royal Higness of the House Clinton, Trump has actually built buildings and run successful businesses and you know shit like that bro.Hillary is a woman and therefore it is unfathomable if she actually "knew" anything.
But compared to Trump The Chump she is an angel of God.
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
I am glad I did not spend my whole life studying law. I would have had to in order to understand what this is talking about.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
I never wanted to be a SCOTUS justice either, even though that is a very prestigious and patriotic job.
My elementary knowledge of law is based on knowing there are elements of proof stated for every crime, and Hillary did not meet the element of "actual disclosure" therefore she does not meet all the elements of proof for a Federal felony.
That works for me.
Not Guilty.
End of story.
Q.E.D.
Let's cut to the chase here. You are quoting some sections of code later on that have NO position on the egregious act that the meglomaniac perpetrated. It has NOTHING to do with sharing or knowingly transferring classified info. THose are espionage charges. THey are not relevant.
She went about constructing a scheme to take a pissdump on the rules when HER JOB was to set the standards to guarantee that classified information was efficiently and securely handled at State.
What she actually did was to put US agents and field folks at mortal risk.
INTENT is not the problem.
RARELY are these cases referred for prosecution because the agency involved does not want an average Joe/Jane grand jury hearing the sordid CLASSIFIED details of what transpired.
you hinge your entire argument on whether a Secretary of State would reasonably know that she would receive classified information through her emails
...
You are seriously going with that?
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
Let's cut to the chase here. You are quoting some sections of code later on that have NO position on the egregious act that the meglomaniac perpetrated. It has NOTHING to do with sharing or knowingly transferring classified info. THose are espionage charges. THey are not relevant. USC 18 1924 is the misdemeanor version of the APPLICABLE law. It does require "intent".
So bottom line is you either believe that Secretary of Dept State was so careless, sloppy, negligence and CLUELESS that her job title would REQUIRE APPROVED SECURE methods of communications and didn't know the difference between her husband's (former PRESIDENT who ALSO KNEW this was illegal) basement server --- OR --- she completely knew when she REJECTED having the PROPER equipment installed in her office and REFUSED to carry PROPER AUTHORIZED equipment for communications and chose for her selfish convenience to WILLFULLY bypass the methods and standard practice of protecting secure information.
She went about constructing a scheme to take a pissdump on the rules when HER JOB was to set the standards to guarantee that classified information was efficiently and securely handled at State. Thus not only setting a NEW LOW in adminstrative example to her employees, but then LYING to Congress and the public about almost every detail of what she actually did.
What she actually did was to put US agents and field folks at mortal risk. And set HERSELF UP for potential blackmail by nefarious organizations and state actors that might very well compromise her ability to SERVE as President.
INTENT is not the problem. The problem is --- that Comey is correct. RARELY are these cases referred for prosecution because the agency involved does not want an average Joe/Jane grand jury hearing the sordid CLASSIFIED details of what transpired. So as Comey says -- the TRADITIONAL route is to FIRE, doc the pay, suspend or REVOKE THE CLEARANCES of the criminal.. In this case, because the PERP was the HEAD of the agency -- that kind of internal security review and proceeding was NEVER an option. Which is the PRIMARY reason why this malicious act SHOULD have been raised to the level of prosecution.
OR _---- set a new gutter level bar for expectations about consequences for mishandling classified info. Which is what YOU seem to be applauding here.
For the record -- I put in 7 years in Intelligence areas. If I was carrying any documents, I could not take a pee in a public bathroom without a hand on my briefcase. If I had - I would be sanctioned and called on the carpet. Tho THAT was inconceivable to me at the time.
Times apparently change.. And the uninformed partisan noise just grows.
First, it's not my argument, it's the FBI's. My remarks and subsequent research into the merit of the FBI's argument for why it recommended against prosecution are my efforts to share information and insights with others so that they too may come to see the rigor, fairness and propriety of the FBI's argument and recommendation.
Do I agree with the FBI's recommendation? Well, having now looked into the data and legal precedents Dir. Comey identified in his press conference and in his hearing, yes. I don't agree because I like Mrs. Clinton for President. I don't like her for President; I would much rather someone else were opposing Donald Trump.
Second, the argument has nothing to do with what she "would" know but rather whether she intended to violate the provisions of Subsection 793(f).
Third, it was a U.S. Congressman who sought to confound things by introducing the matter of what Mrs. Clinton "would' know about the content that would come her way via her personal email account.
Fourth, and most importantly, I posted the dialogue about what Mrs. Clinton did or "would" know about the nature of information that would land in her personal email account to illustrate an instance of a GOP Congressman's lack of integrity. The heading to that section of the post indicated as much.
Should I have noted that section of my post expressly as being a "sidebar" set of comments? Apparently seeing as you missed that implication based on the emboldened heading that preceded that content in my post.
There is certainly a subtext to my having included that set of remarks. That subtext is that I've long maintained that the most important thing to me is integrity and that U.S. Congressman, in his zeal for finding fault with Mrs. Clinton, for doing whatever he can to harm her prospects of winning the November election, as typical of the GOP, led him to resort to misrepresenting the very fact and nature of his own remarks given just minutes earlier.
I elected to point out that instance of integrity's lacking also because if I don't point it out now, I likely won't remember it later.
Stop judging your superiors, peasant.I dealt with classified material nearly my entire adult life, and I VIVIDLY remember every security briefing I ever received and it is inconceivable that Clinton was not aware that keeping classified material on a non government system was both reckless and illegal. She got away with one here, that's not even a question. Except to partisans.
Let's cut to the chase here. You are quoting some sections of code later on that have NO position on the egregious act that the meglomaniac perpetrated. It has NOTHING to do with sharing or knowingly transferring classified info. THose are espionage charges. THey are not relevant. USC 18 1924 is the misdemeanor version of the APPLICABLE law. It does require "intent".
So bottom line is you either believe that Secretary of Dept State was so careless, sloppy, negligence and CLUELESS that her job title would REQUIRE APPROVED SECURE methods of communications and didn't know the difference between her husband's (former PRESIDENT who ALSO KNEW this was illegal) basement server --- OR --- she completely knew when she REJECTED having the PROPER equipment installed in her office and REFUSED to carry PROPER AUTHORIZED equipment for communications and chose for her selfish convenience to WILLFULLY bypass the methods and standard practice of protecting secure information.
She went about constructing a scheme to take a pissdump on the rules when HER JOB was to set the standards to guarantee that classified information was efficiently and securely handled at State. Thus not only setting a NEW LOW in adminstrative example to her employees, but then LYING to Congress and the public about almost every detail of what she actually did.
What she actually did was to put US agents and field folks at mortal risk. And set HERSELF UP for potential blackmail by nefarious organizations and state actors that might very well compromise her ability to SERVE as President.
INTENT is not the problem. The problem is --- that Comey is correct. RARELY are these cases referred for prosecution because the agency involved does not want an average Joe/Jane grand jury hearing the sordid CLASSIFIED details of what transpired. So as Comey says -- the TRADITIONAL route is to FIRE, doc the pay, suspend or REVOKE THE CLEARANCES of the criminal.. In this case, because the PERP was the HEAD of the agency -- that kind of internal security review and proceeding was NEVER an option. Which is the PRIMARY reason why this malicious act SHOULD have been raised to the level of prosecution.
OR _---- set a new gutter level bar for expectations about consequences for mishandling classified info. Which is what YOU seem to be applauding here.
For the record -- I put in 7 years in Intelligence areas. If I was carrying any documents, I could not take a pee in a public bathroom without a hand on my briefcase. If I had - I would be sanctioned and called on the carpet. Tho THAT was inconceivable to me at the time.
Times apparently change.. And the uninformed partisan noise just grows.
First, it's not my argument, it's the FBI's. My remarks and subsequent research into the merit of the FBI's argument for why it recommended against prosecution are my efforts to share information and insights with others so that they too may come to see the rigor, fairness and propriety of the FBI's argument and recommendation.
Do I agree with the FBI's recommendation? Well, having now looked into the data and legal precedents Dir. Comey identified in his press conference and in his hearing, yes. I don't agree because I like Mrs. Clinton for President. I don't like her for President; I would much rather someone else were opposing Donald Trump.
Well, you think like a lawyer, even if you are not, and I mean that as a compliment, all joking aside. You seem to be completely comfortable with the absurdity of saying that one needs criminal intent in order to prosecute a person for 'extreme carelessness' i.e. 'gross negligence'. Must people understand that in the vernacular negligence does not require intent. When the cop pulls you over and gives you a ticket he could not care less about your intent. When the EPA seizes a business for the violation of environmental regulations they do not concern themselves with the intent of the owners, etc.
It is merely coincidence, I'm sure, that Comey has once again performed astonishing legal contortions to protect the Clintons from prosecution. /sarc
Second, the argument has nothing to do with what she "would" know but rather whether she intended to violate the provisions of Subsection 793(f).
Storing emails that will have classified information in them on an unsecure sever amounts to intent in most peoples minds, and if it were you or I, we would be in jail and the finer points of the law would not shield us from the FBI or DOJ. That is only done for the Oligarchs and their useful puppets.
Third, it was a U.S. Congressman who sought to confound things by introducing the matter of what Mrs. Clinton "would' know about the content that would come her way via her personal email account.
IT is not accurate to characterize the introduction of common sense into a discussion of what any reasonable person should have expected to be stored on their server, and Comey agreed any reasonable person would expect classified information to be there. But it would appear that Comey doe snot place Hillary Clinton into that category either because she is incapable of reason or because she is tacitly above the law.
Fourth, and most importantly, I posted the dialogue about what Mrs. Clinton did or "would" know about the nature of information that would land in her personal email account to illustrate an instance of a GOP Congressman's lack of integrity. The heading to that section of the post indicated as much.
Should I have noted that section of my post expressly as being a "sidebar" set of comments? Apparently seeing as you missed that implication based on the emboldened heading that preceded that content in my post.
You seem to be unaware that Hillary used her personal email for government business and certainly KNEW FOR A FACT that she would have classified information go to that same unsecure server.
There is certainly a subtext to my having included that set of remarks. That subtext is that I've long maintained that the most important thing to me is integrity and that U.S. Congressman, in his zeal for finding fault with Mrs. Clinton, for doing whatever he can to harm her prospects of winning the November election, as typical of the GOP, led him to resort to misrepresenting the very fact and nature of his own remarks given just minutes earlier.
I elected to point out that instance of integrity's lacking also because if I don't point it out now, I likely won't remember it later.
I would think that basic honesty in interpreting the Reality around you, that you live in and share with others would be a core principle to your system of and definition of integrity.
Thanks to legalistic gymnastics like yours our entire legal system of classified document storage has been critically weakened, probably to the point of making the entire endeavor effectively worthless. This places everyone in our Republic vulnerable to our nations enemies.
I am not impressed with your commitment to your concept of 'integrity' nor even the most basic values like honesty and courage.
That is an excellent summation of what I was driving at.First, it's not my argument, it's the FBI's. My remarks and subsequent research into the merit of the FBI's argument for why it recommended against prosecution are my efforts to share information and insights with others so that they too may come to see the rigor, fairness and propriety of the FBI's argument and recommendation.
Do I agree with the FBI's recommendation? Well, having now looked into the data and legal precedents Dir. Comey identified in his press conference and in his hearing, yes. I don't agree because I like Mrs. Clinton for President. I don't like her for President; I would much rather someone else were opposing Donald Trump.
Well, you think like a lawyer, even if you are not, and I mean that as a compliment, all joking aside. You seem to be completely comfortable with the absurdity of saying that one needs criminal intent in order to prosecute a person for 'extreme carelessness' i.e. 'gross negligence'. Must people understand that in the vernacular negligence does not require intent. When the cop pulls you over and gives you a ticket he could not care less about your intent. When the EPA seizes a business for the violation of environmental regulations they do not concern themselves with the intent of the owners, etc.
It is merely coincidence, I'm sure, that Comey has once again performed astonishing legal contortions to protect the Clintons from prosecution. /sarc
Second, the argument has nothing to do with what she "would" know but rather whether she intended to violate the provisions of Subsection 793(f).
Storing emails that will have classified information in them on an unsecure sever amounts to intent in most peoples minds, and if it were you or I, we would be in jail and the finer points of the law would not shield us from the FBI or DOJ. That is only done for the Oligarchs and their useful puppets.
Third, it was a U.S. Congressman who sought to confound things by introducing the matter of what Mrs. Clinton "would' know about the content that would come her way via her personal email account.
IT is not accurate to characterize the introduction of common sense into a discussion of what any reasonable person should have expected to be stored on their server, and Comey agreed any reasonable person would expect classified information to be there. But it would appear that Comey doe snot place Hillary Clinton into that category either because she is incapable of reason or because she is tacitly above the law.
Fourth, and most importantly, I posted the dialogue about what Mrs. Clinton did or "would" know about the nature of information that would land in her personal email account to illustrate an instance of a GOP Congressman's lack of integrity. The heading to that section of the post indicated as much.
Should I have noted that section of my post expressly as being a "sidebar" set of comments? Apparently seeing as you missed that implication based on the emboldened heading that preceded that content in my post.
You seem to be unaware that Hillary used her personal email for government business and certainly KNEW FOR A FACT that she would have classified information go to that same unsecure server.
There is certainly a subtext to my having included that set of remarks. That subtext is that I've long maintained that the most important thing to me is integrity and that U.S. Congressman, in his zeal for finding fault with Mrs. Clinton, for doing whatever he can to harm her prospects of winning the November election, as typical of the GOP, led him to resort to misrepresenting the very fact and nature of his own remarks given just minutes earlier.
I elected to point out that instance of integrity's lacking also because if I don't point it out now, I likely won't remember it later.
I would think that basic honesty in interpreting the Reality around you, that you live in and share with others would be a core principle to your system of and definition of integrity.
Thanks to legalistic gymnastics like yours our entire legal system of classified document storage has been critically weakened, probably to the point of making the entire endeavor effectively worthless. This places everyone in our Republic vulnerable to our nations enemies.
I am not impressed with your commitment to your concept of 'integrity' nor even the most basic values like honesty and courage.
what you say is off base some.
The statute dealing with neglect in regards to classified material is fairly unique in that it is one of the VERY few federal laws that does not require intent.
By comparison, take murder, if you are negligent and someone gets killed b/c of it, you are not guilty of murder, there is another crime , negligent homicide in fact, that covers that, but there is no negligent mishandling of classified material. There is merely mishandling of classified material.
Plus of course the entire issue is ridiculous. OF COURSE Hillary INTENTIONALLY put classified material on those servers and OF COURSE she was aware that it was illegal to do so.
Let's cut to the chase here. You are quoting some sections of code later on that have NO position on the egregious act that the meglomaniac perpetrated. It has NOTHING to do with sharing or knowingly transferring classified info. THose are espionage charges. THey are not relevant.
You may want to "cut" a good deal less quickly and a good deal more carefully. All of the statues I've been discussing are part of 18 U.S. Code Chapter 37 - ESPIONAGE AND CENSORSHIP. Subsection 793 was primary focus of yesterday's Congressional hearing in which Dir. Comey responded to four hours of inquiry.
She went about constructing a scheme to take a pissdump on the rules when HER JOB was to set the standards to guarantee that classified information was efficiently and securely handled at State.
Actually, that's not the SecState's job. That job is the one performed, in accordance with the Federal Information Security Management Act (FISMA), Public Law (P.L.) 107-347, by National Institute of Standards and Technology, which is a unit of the Department of Commerce. The physical real property security guidelines are set by the Interagency Security Committee of the Department of Homeland Security. From my read of
Executive Order 13526, it appears the standards for handling information not within the scope of the FISMA are set by the Director of the Information Security Oversight Office who "shall establish standards for...safeguarding classified information, which shall pertain to the handling, storage, distribution, transmittal, and destruction of and accounting for classified information. As far as I know, the DOS is expected to follows those standards, but the SecState does not set the standards.
It is worth noting that no matter the standards, there are no "guarantees." The instances of information being delivered to foreign interests by spies/infiltrators, and the U.S.' prosecution or detection of them demonstrate as much.
What she actually did was to put US agents and field folks at mortal risk.
Perhaps. I can't say. I don't know what classified information was in the emails. Do you?
INTENT is not the problem.
I agree. The problem is that we have a law that was written and worded to deal with a world without email and the other modes of information communication/dissemination that today exist. That this is so is not news to members of Congress.
In addition to the information gathered in the hearing cited above, Presidents too have asked Congress to revise the Espionage Act and the Classified Information Procedures Acts.
- ESPIONAGE ACT AND THE LEGAL AND CONSTITUTIONAL ISSUES RAISED BY WIKILEAKS
"Thanks to WikiLeaks the government now has two very important decisions to make. The first is whether to prosecute Assange and WikiLeaks. The second is whether to revise the laws of the Espionage Act to strike a better and clearer balance between security and freedom of the press."
- Synopsis Of Classified Information Procedures Act (CIPA) (Full text here: CLASSIFIED INFORMATION PROCEDURES ACT)
- THE CLASSIFIED INFORMATION PROCEDURES ACT IN THE AGE OF TERRORISM: REMODELING CIPA IN AN OFFENSE-SPECIFIC MANNER
RARELY are these cases referred for prosecution because the agency involved does not want an average Joe/Jane grand jury hearing the sordid CLASSIFIED details of what transpired.
The content one will find in the synopsis of the CIPA notwithstanding, that seems at least plausible. There have been recent prosecutions of individuals suspected of classified information security breaches pursuant to the Espionage Act, and the guidelines of the CIPA had to be applied to to the process.
I can't speak to why prosecutors are reluctant to act in accordance with and assume the responsibilities stipulated in the CIPA. Perhaps they just don't want to work that hard? Or perhaps they don't care to disclose the nature or extent of tools at the government's disposal as was claimed in Drake? Who knows? What I do know is that while reasons of the "shady" nature such as you proposed, while extant among the set of possible reasons, are yet reasons for which I have no strong grounds for accepting or rejecting as being the most likely reasons.
Perhaps. I can't say. I don't know what classified information was in the emails. Do you?
Let's cut to the chase here. You are quoting some sections of code later on that have NO position on the egregious act that the meglomaniac perpetrated. It has NOTHING to do with sharing or knowingly transferring classified info. THose are espionage charges. THey are not relevant.
You may want to "cut" a good deal less quickly and a good deal more carefully. All of the statues I've been discussing are part of 18 U.S. Code Chapter 37 - ESPIONAGE AND CENSORSHIP. Subsection 793 was primary focus of yesterday's Congressional hearing in which Dir. Comey responded to four hours of inquiry.
She went about constructing a scheme to take a pissdump on the rules when HER JOB was to set the standards to guarantee that classified information was efficiently and securely handled at State.
Actually, that's not the SecState's job. That job is the one performed, in accordance with the Federal Information Security Management Act (FISMA), Public Law (P.L.) 107-347, by National Institute of Standards and Technology, which is a unit of the Department of Commerce. The physical real property security guidelines are set by the Interagency Security Committee of the Department of Homeland Security. From my read of
Executive Order 13526, it appears the standards for handling information not within the scope of the FISMA are set by the Director of the Information Security Oversight Office who "shall establish standards for...safeguarding classified information, which shall pertain to the handling, storage, distribution, transmittal, and destruction of and accounting for classified information. As far as I know, the DOS is expected to follows those standards, but the SecState does not set the standards.
It is worth noting that no matter the standards, there are no "guarantees." The instances of information being delivered to foreign interests by spies/infiltrators, and the U.S.' prosecution or detection of them demonstrate as much.
What she actually did was to put US agents and field folks at mortal risk.
Perhaps. I can't say. I don't know what classified information was in the emails. Do you?
INTENT is not the problem.
I agree. The problem is that we have a law that was written and worded to deal with a world without email and the other modes of information communication/dissemination that today exist. That this is so is not news to members of Congress.
In addition to the information gathered in the hearing cited above, Presidents too have asked Congress to revise the Espionage Act and the Classified Information Procedures Acts.
- ESPIONAGE ACT AND THE LEGAL AND CONSTITUTIONAL ISSUES RAISED BY WIKILEAKS
"Thanks to WikiLeaks the government now has two very important decisions to make. The first is whether to prosecute Assange and WikiLeaks. The second is whether to revise the laws of the Espionage Act to strike a better and clearer balance between security and freedom of the press."
- Synopsis Of Classified Information Procedures Act (CIPA) (Full text here: CLASSIFIED INFORMATION PROCEDURES ACT)
- THE CLASSIFIED INFORMATION PROCEDURES ACT IN THE AGE OF TERRORISM: REMODELING CIPA IN AN OFFENSE-SPECIFIC MANNER
RARELY are these cases referred for prosecution because the agency involved does not want an average Joe/Jane grand jury hearing the sordid CLASSIFIED details of what transpired.
The content one will find in the synopsis of the CIPA notwithstanding, that seems at least plausible. There have been recent prosecutions of individuals suspected of classified information security breaches pursuant to the Espionage Act, and the guidelines of the CIPA had to be applied to to the process.
I can't speak to why prosecutors are reluctant to act in accordance with and assume the responsibilities stipulated in the CIPA. Perhaps they just don't want to work that hard? Or perhaps they don't care to disclose the nature or extent of tools at the government's disposal as was claimed in Drake? Who knows? What I do know is that while reasons of the "shady" nature such as you proposed, while extant among the set of possible reasons, are yet reasons for which I have no strong grounds for accepting or rejecting as being the most likely reasons.
On the applicable statutes --- I watched 3/4 of Comey getting questioned. NOBODY was invoking 793 because that's the FELONY version of 1924. So let's keep the margins clean..
On Espionage statutes and comparisons --- NOBODY is alleging that Clinton INTENTIONALLY LEAKED anything., So let';s cut out WikiLeaks et al.. You do not even NEED evidence of COMPROMISE (or intent to compromise) to seriously violate the mishandling of Classified material..
As for Clinton"s JOB to set policy and standards for handling classified material at State -- AND her role to make sure violations are handled INTERNAL to the Dept appropriately -- You are flat wrong. Every Fed Dept and for that matter -- every govt contractor is REQUIRED to have an INTERNAL security staff for monitoring the handling of CLASSIFIED documents. They are also responsible for arbitration of breaches and problems. As I told you in my first post -- THESE are the folks that hand out Administrative sanctions that Comey repeatedly spoke of. And as the HEAD of the dept at State -- It was INDEED her responsibility to perform oversight on those operations. Breaches are NOT often "prosecuted".. That does not mean that NOTHING HAPPENS or the persons accused are "innocent".. The Fed Records law is NOT the definitive law for handling classified information since many of methods and practices are themselves "CLASSIFIED"..
The "Classified Records Act" of which you quote simply lays out the problems of PROSECUTING in a public space -- a trial that LIKELY contains classified material.. Which is WHY -- INTERNAL discipline is preferred. And EVEN IF -- the case could be BROUGHT to trial --- it MAY BE HELD in private, with no public awareness of the discourse or the evidence. This act is simply NOT informative as to WHAT charges can be filed or the DEFINITION of acts that are subject to LEGAL prosecution..
Your response to my experienced observation that having a Sec State conduct the MAJORITY of her biz on a home-brewed ad hoc UNAPPROVED comm channel puts LIVES and National reputation at risk boggles my mind.
Perhaps. I can't say. I don't know what classified information was in the emails. Do you?
What is EXPECTED to be in a Sec State's work is communications about the MOVEMENT, ACTIONS, and PROTECTION of foreign service agents and "reliable sources" that you might just call informants as well. Realize that State has to coordinate with the military and intel services both foreign and domestic), -- The latter ALWAYS being extremely sensitive. And we KNOW that Clinton had her own rogue sources like Blumenthal blabbering about diplomatic missions and movements. Also suspect that the SCI level emails that survived (and realized that only about 60 or 70% of her work product on those machines SURVIVED) are classified SCI BECAUSE humint (human intelligience) is involved. She put the entire State foreign staff in EXTREME jeopardy by REJECTING the use of approved equipment and opted for convenience.
And to tell me you're following along here --- I'd really like your comments on the Blackmail issue I brought up. Which you glossed over. If the ability to blackmailed in any fashion is NOT the #1 reason to reject a security clearance -- It is in the top 3... IF bad actors are in possession of MORE of the meglomaniac's work that the FBI actually is --- she stands an EXCELLENT chance of being comprised as Prez via blackmail...
Let's cut to the chase here. You are quoting some sections of code later on that have NO position on the egregious act that the meglomaniac perpetrated. It has NOTHING to do with sharing or knowingly transferring classified info. THose are espionage charges. THey are not relevant. USC 18 1924 is the misdemeanor version of the APPLICABLE law. It does require "intent".
So bottom line is you either believe that Secretary of Dept State was so careless, sloppy, negligence and CLUELESS that her job title would REQUIRE APPROVED SECURE methods of communications and didn't know the difference between her husband's (former PRESIDENT who ALSO KNEW this was illegal) basement server --- OR --- she completely knew when she REJECTED having the PROPER equipment installed in her office and REFUSED to carry PROPER AUTHORIZED equipment for communications and chose for her selfish convenience to WILLFULLY bypass the methods and standard practice of protecting secure information.
She went about constructing a scheme to take a pissdump on the rules when HER JOB was to set the standards to guarantee that classified information was efficiently and securely handled at State. Thus not only setting a NEW LOW in adminstrative example to her employees, but then LYING to Congress and the public about almost every detail of what she actually did.
What she actually did was to put US agents and field folks at mortal risk. And set HERSELF UP for potential blackmail by nefarious organizations and state actors that might very well compromise her ability to SERVE as President.
INTENT is not the problem. The problem is --- that Comey is correct. RARELY are these cases referred for prosecution because the agency involved does not want an average Joe/Jane grand jury hearing the sordid CLASSIFIED details of what transpired. So as Comey says -- the TRADITIONAL route is to FIRE, doc the pay, suspend or REVOKE THE CLEARANCES of the criminal.. In this case, because the PERP was the HEAD of the agency -- that kind of internal security review and proceeding was NEVER an option. Which is the PRIMARY reason why this malicious act SHOULD have been raised to the level of prosecution.
OR _---- set a new gutter level bar for expectations about consequences for mishandling classified info. Which is what YOU seem to be applauding here.
For the record -- I put in 7 years in Intelligence areas. If I was carrying any documents, I could not take a pee in a public bathroom without a hand on my briefcase. If I had - I would be sanctioned and called on the carpet. Tho THAT was inconceivable to me at the time.
Times apparently change.. And the uninformed partisan noise just grows.
You dont seem to get it.
Laws are for the Little People, not the Oligarchs.
OF course Hillary supporters do have actual brains, that is just artistic hyperbole, lol.
No seriously, they do have brains.
