CDZ Technically correct vs. loud, strong and wrong

[Toddsterpatriot]

I've researched it enough to understand that lack of intent is not a defense,

Of course it's not a defense. It's a reason not to bring charges.

Correction, it is an excuse not to bring charges..
Their have been solders that have been court martialed and served time for doing less. Many didn't intend to violate confidentiality laws, but they did.

Court martialed necessarily means that the Uniform Code of Military Justice (UCMJ) was the applicable body of law. The Espionage Act which contains section 793(f) that applied to "email-gate" is not part of the UCMJ; however, violations of the Espionage Act can be tried under the UCMJ's Article 134. Mrs. Clinton, however, was not subject to military jurisprudence. Whether the UCMJ follows strict liability or specific intent with regard to Article 134 prosecutions, I don't know.

The military has extensive regulations that govern the handling of classified material and the failure to follow these regulations is a criminal offense. Negligence can result in a conviction under UCMJ Article 92 because the test is whether the service member “knew or should have known” they were violating the regulation. But these rules do not apply to any civilian personnel at the State Department, although some of them apply in limited circumstances to DoD civilian employees.

Despite what may appear to be the plain meaning of 793(f), the negligent mishandling of classified material is not a civilian criminal offense. A civilian can face many consequences for negligently mishandling classified material, including the loss of their clearance and probably with it their employment, but they would not face criminal charges. For anyone who thinks negligence should be a crime their argument is not with Director Comey but with Justice Reed, the author of the Gorin opinion. Because of that decision, the correct standard is intent, not gross negligence, and the director was right not to recommend a criminal case.

Source: Why Intent, Not Gross Negligence, is the Standard in Clinton Case​

Because of that decision, the correct standard is intent, not gross negligence, and the director was right not to recommend a criminal case.

She didn't intend classified material to be on her private, unsecured server?

 

[320 Years of History]

The FBI and Congress have found nothing criminal with HRC but that doesn't sit well with the alt-right so they go to their main source for fake outrage and fake information, Alex Jones.

And they don't see anything wrong with this. <---- that is where the problem lies.

Red:
That's where you are wrong. The FBI did identify criminal acts. It did not find evidence of criminal intent. (See the reference links in post #5 and then click on those links and read the content you find there.)

For some reason folks on this site, a lot of them -- I don't know if you, IsaacNewton, are among them -- really have difficulty with the idea of actus rea and mens rea both having to be present for the statute the FBI considered as the basis for bringing charges against Mrs. Clinton.

I've seen folks here attempt to say the FBI director was wrong, and yet the folks here saying that haven't established that they are legal scholars, that they have a JD at all, or that they've served as a prosecutor, judge or criminal attorney, but they're right and he's wrong and we're supposed to take their word for it. They don't even go so far as to cite any legal theory documentation -- SCOTUS briefs and decisions, papers from law journals, etc. -- that support their case, and they still want us to accept their claim. I can't even imagine the amount of hubris it takes to do that, but I have seen it on display here; thus I know the requisite quantity does exist among some humans.

Which of your links specifically referenced the laws she broke?

The content at the links discusses the legal principles of mens rea, actus rea and their application in determining, when either or both are required in a given situation/statute. One needs to learn the legal theory of those two principles and then apply the theory to the statute and situation of Mrs. Clinton and her emails. Upon completing the reading, one will understand why Director Comey recommended that no charges be brought in "email-gate."

The last application I know of for The Espionage Act was Gorin v United States. As far as I know from what I read in the linked content, nobody has ever been prosecuted under a gross negligence theory (strict liability; only actus rea is required to be proven) in connection with 793(f) as a result of Gorin. That there is only Gorin and that the only basis for 793(f) prosecutions, without exception, has been specific intent theory (mens rea required) is why one needs to read the linked legal theory content (to understand the two legal theories) rather than look for 793(f)-related cases that use gross negligence theory.

The content at the links discusses the legal principles of mens rea, actus rea

I understand the legal principles.
I also understand that mens rea is not a factor when classified materials are mishandled.

Red:
Please, with specific reference to the Gorin decision (not the dissent) show that to be so.

 

[320 Years of History]

I've researched it enough to understand that lack of intent is not a defense,

Of course it's not a defense. It's a reason not to bring charges.

Correction, it is an excuse not to bring charges..
Their have been solders that have been court martialed and served time for doing less. Many didn't intend to violate confidentiality laws, but they did.

Court martialed necessarily means that the Uniform Code of Military Justice (UCMJ) was the applicable body of law. The Espionage Act which contains section 793(f) that applied to "email-gate" is not part of the UCMJ; however, violations of the Espionage Act can be tried under the UCMJ's Article 134. Mrs. Clinton, however, was not subject to military jurisprudence. Whether the UCMJ follows strict liability or specific intent with regard to Article 134 prosecutions, I don't know.

The military has extensive regulations that govern the handling of classified material and the failure to follow these regulations is a criminal offense. Negligence can result in a conviction under UCMJ Article 92 because the test is whether the service member “knew or should have known” they were violating the regulation. But these rules do not apply to any civilian personnel at the State Department, although some of them apply in limited circumstances to DoD civilian employees.

Despite what may appear to be the plain meaning of 793(f), the negligent mishandling of classified material is not a civilian criminal offense. A civilian can face many consequences for negligently mishandling classified material, including the loss of their clearance and probably with it their employment, but they would not face criminal charges. For anyone who thinks negligence should be a crime their argument is not with Director Comey but with Justice Reed, the author of the Gorin opinion. Because of that decision, the correct standard is intent, not gross negligence, and the director was right not to recommend a criminal case.

Source: Why Intent, Not Gross Negligence, is the Standard in Clinton Case​

Because of that decision, the correct standard is intent, not gross negligence, and the director was right not to recommend a criminal case.

She didn't intend classified material to be on her private, unsecured server?

I cannot speak to what Mrs. Clinton's intent was or was not. that is beyond the "convenience" and other factors she expressly articulated. Can you?

I can tell that nobody who matters in the legal decision of whether to prosecute the woman under 793(f) thinks there exists evidence to bring a case that requires, in accordance with Gorin, specific intent be proven.

 

[320 Years of History]

Okay...enough diversionary discussion...back on topic, please.


The level of detail to which that the preceding remarks about Mrs. Clinton have gone is clear evidence of precisely the point of the OP and the technicality of Mrs. Clinton's remarks and the very close read one must often give to fully interpret them and apply them to any given situation.

 

[Toronado3800]

There is no "intent" clause to the documents being on her server. She set up the server to conduct the selling of her office in a way that would keep her from being caught.....

The FBI immunized her staff for no reason....they could have gotten access to their computers with subpoeanas or search warrants......

The FBI agreed to not look at emails after January of 2015....they had deleted emails and destroyed electronic devices in March of 2015....

The FBI did not put hilary under oath, and they did not look or ask any questions that would have given them reason to pursue "intent" to break the law.....

President obama was using her server and did so under a fake name....this is one of the reasons the FBI covered up her criminal activity.....

They destroyed the servers.

They destroyed all of their blackberries.

They said they lost one of the subpoenaed laptops in the mail....

They were allowed to destroy their laptops after the FBI had them...per agreement with the FBI, ending any future possibility of investigations......

They used BleachBIt...a high tech program to destroy emails on the illegal servers....

Yet there was no "intent" to commit crimes?

320....really....really?

And on to Bhengazi....the AMbassador...her alleged good freind.....requested security upgrades and more security people for months...and was repeatedly refused.......the State Dept. also refused additional security offered by the Military, forcing the Ambassador to also have to refuse since his superiors turned down the support.......

The night of the attack....no rescue mission was sent, or staged......

4 men died...under her watch at the State Department....

320...really?

The refugee crisis in Europe is a direct result of hilary pushing to remove Qadafi from power....and the refusal to keep troops in Iraq led to the creation of isis......and no, it wasn't because they couldn't get a Status of Forces AGreement....they had that, they turned it down according to Michael Rubin who talked to the Iraqi government......

320...really?

Mistake after mistake and disaster after disaster....hilary is a nightmare....

The server thing, yup. I dunno what she was thinking.

***********************

Bhengazi, 4 men died. 4. 4. Was it really just four? A tragic loss to their families and friends no doubt and my one death will mean a lot to me.

BUT, I have asked repeatedly on here for examples of the quickest U.S. military peace time response to anything and all I get are the sounds of crickets and the several day response to the rescue of Captain Phillips. The USS Ward is our quick response hero of the last 100 years I fear.

Perhaps it is the fear of hitting a bus of children or something but we just don't seem ready for that even when planes are flying into skyscrapers and the Pentagon. It was passengers of flight 97 which saved it's intended target not our military.


******************

"The refugee crisis in Europe is a direct result of hilary pushing to remove Qadafi from power...."

Reagan would be proud we finally did remove him.

Far as the greater crisis and spread of ISIS... Our 20 plus year involvement in Iraq has done something also. Hillary's fault? I dunno. She couldn't rebuild Iraq I suppose and she couldn't prop up Qadafi w/o being called weak on a terrorist. Heck, I couldn't help prop up Qadafi w/o vomiting myself. MAYBE if I could see the replacement would be worse, maybe. I dunno.

Also, wasn't the "W" ridiculed for being soft on terror in 04 for easing sanctions and Hillary vilified for meeting with Mutassim Gaddafi in 2010? Maybe that was just on the anger talk shows who wanted Gaddafi removed from power?

************************
She ain't my gal to defend, I am not defending whatever she was thinking with the e-mails. Just point your criticisms the right way and hate her for the right reasons.

 

[9thIDdoc]

Disagree. Hillary has been getting away with corruption and unethical behavior because of money and connections. She is not qualified to hold a security clearance much less a political post.

 

[Toronado3800]

Disagree. Hillary has been getting away with corruption and unethical behavior because of money and connections. She is not qualified to hold a security clearance much less a political post.

I don't entirely disagree.

That email server idea was boneheaded.

If the Republicans don't win this one it will be another case of clinching defeat from the jaws of victory.

 

[Dragonlady]

There is no "intent" clause to the documents being on her server. She set up the server to conduct the selling of her office in a way that would keep her from being caught.....

The FBI immunized her staff for no reason....they could have gotten access to their computers with subpoeanas or search warrants......

The FBI agreed to not look at emails after January of 2015....they had deleted emails and destroyed electronic devices in March of 2015....

The FBI did not put hilary under oath, and they did not look or ask any questions that would have given them reason to pursue "intent" to break the law.....

President obama was using her server and did so under a fake name....this is one of the reasons the FBI covered up her criminal activity.....

They destroyed the servers.

They destroyed all of their blackberries.

They said they lost one of the subpoenaed laptops in the mail....

They were allowed to destroy their laptops after the FBI had them...per agreement with the FBI, ending any future possibility of investigations......

They used BleachBIt...a high tech program to destroy emails on the illegal servers....

Yet there was no "intent" to commit crimes?

320....really....really?

And on to Bhengazi....the AMbassador...her alleged good freind.....requested security upgrades and more security people for months...and was repeatedly refused.......the State Dept. also refused additional security offered by the Military, forcing the Ambassador to also have to refuse since his superiors turned down the support.......

The night of the attack....no rescue mission was sent, or staged......

4 men died...under her watch at the State Department....

320...really?

The refugee crisis in Europe is a direct result of hilary pushing to remove Qadafi from power....and the refusal to keep troops in Iraq led to the creation of isis......and no, it wasn't because they couldn't get a Status of Forces AGreement....they had that, they turned it down according to Michael Rubin who talked to the Iraqi government......

320...really?

Mistake after mistake and disaster after disaster....hilary is a nightmare....

You assessment is bullshit. The status of forces agreement that the Iraq's were willing to sign would mean that US military personnel could be tried in Iraqi courts if there were any "problems", i.e. if a US soldier shot an Iraqi, he/she would be tried in an Iraqi civilian court. The US would not sign such an agreement.

Refugees aren't flooding into Europe because Qaadafi was outsted. They're flooding into Europe because Assad is President of Syria, and he's being protected by the Russians. Assad has been slaughtering his own people for years.

You don't even know what's going on in the world, you just parrot the latest garbage issuing out of Hannity's mouth as gospel.

Get informed and stop being such a pushover for those who would take advantage of your ignorance.

 

[GaryDog]

The battle between Hillary Clinton and Donald Trump has since it began been one wherein time and time again, we see a pattern from each of them.

• Hillary Clinton: She says often things that on the surface sound like they're sketchy, but when one puts in a lot of time and effort to get down to the details, one finds her statements are usually factually accurate.
  
  Take her "email" issue. Mrs. Clinton is an attorney, no doubt a good enough one to know the difference between mens rea statutes and strict liability statutes. She played the "email" issue right up against that line and that kept her free from prosecution in courts, but she's taken a lot of heat for handling the matter in a way that doesn't really jibe with a non-attorney's understanding of legal theory and practice.
  
  She was correct insofar as she didn't commit a prosecutable offense and that's been shown to be the case. One need not like that the law has a mens rea concept, but it does and because it does, and she knows it does, there's nobody to blame for her knowing that and relying upon it. Similarly, there's nobody to blame for non-lawyers not understanding that concept and how it plays out in legal proceedings. At the end of the day, the concept is there, it's a technical aspect of how the law works, and it's in force and that's that.
  
  
• Donald Trump: He says things that seem accurate or correct, sometimes even morally/ethically right and that makes some folks feel good about hearing a personage like Trump say them, but cursory analysis reveals that usually the man's statements are factually incorrect, or not verifiable/unverified, incongruous with his own stated objectives, or not ethically sound, or, worse, both.

Take any number of statements the man has made, some of which are below:

• his position on Iraq War II,
• the thousands of people he claims to have seen celebrating after the Towers fell,
• that crime is rising even as the gun lobby that supports him routinely notes that it's not,
• that we have a $500B trade deficit with China,
• that we always lose at trade deals, yet we have trade surpluses with a number of countries including Hong Kong, the Netherlands, the UAE and Australia,
• that healthcare premiums increased by 35% - 55% when the actual figure is ~6%,
• that he wants manufacturing back in the U.S., but he's not put his money where his mouth is re: his choice of manufacturer for his own clothing line, even though there are plenty of factories in the U.S. that can produce his clothing,
• his claim that he's being audited by the IRS yet he's not so much as produced the IRS notification document he would have received, thus showing that's true,
• his invoking Ronald Reagan's name/memory when Michael Reagan essentially says there's nothing about Trump and his way of doing things of which his father would approve,
• Using thousands of Trump foundation money to pay personal debts,
• his claiming he's not a racist, yet his remarks about Judge Curiel are the very definition of racism.

And now, Trump has poisoned Gov. Pence to the point that he, Trump's running mate, won't even defend Trump and has even gone so far as to deny Trump said things that Trump did say.

​

So where we voters are having to choose between a candidate who knows the leadership, legal and political game -- the rules, the strategy, the tactics, and the players -- inside out and plays it like a chess grandmaster and a candidate who either doesn't know or doesn't care what game they're playing, much less be any good at playing it. Well, I'm sorry, but I don't care how romantic, how idealistic be the notion of "Trump the Businessman as President," neither the man nor his campaign team is ready for "prime time" on the political world stage.

With that as the framework for this thread's discussion, the central question is this:

Do you want a "grandmaster" in the White House or do you want a "reasonably good Monopoly player?"
​

From where I sit, that's about what the two major party candidates in this year's Presidential election race is beginning to look like.

Take her "email" issue. Mrs. Clinton is an attorney, no doubt a good enough one to know the difference between mens rea statutes and strict liability statutes.

Can you show the laws about mishandling classified material mention intent?

She was correct insofar as she didn't commit a prosecutable offense

Did she have classified material on her server?

Why are you demanding answers to these questions from a non-lawyer on a message board when the top federal investigator in the land (with a law degree) already answered them for you?

 

[Dragonlady]

No....she set up an entire, secret email server so she could pass those documents directly through her control and her electronic devices......she didn't have to download anything they went to illegal servers that were unsecured and eventually hacked by foreign governments....

Why bother with evidence, testimony, or interviews. Let's just go with your take on things which is based on what, feelings?

There is absolutely no evidence that Hillary's email was ever hacked. You only have to see what WikiLeaks is releasing to know that. Not one piece of email from Hillary's server. The Hillary emails they released they obtained legally through a FOI request.

But keep believe the FOX news lies. Their fact checking record is slightly better than Trump's.

 

[CowboyTed]

There is no "intent" clause to the documents being on her server. She set up the server to conduct the selling of her office in a way that would keep her from being caught.....

The FBI immunized her staff for no reason....they could have gotten access to their computers with subpoeanas or search warrants......

The FBI agreed to not look at emails after January of 2015....they had deleted emails and destroyed electronic devices in March of 2015....

The FBI did not put hilary under oath, and they did not look or ask any questions that would have given them reason to pursue "intent" to break the law.....

President obama was using her server and did so under a fake name....this is one of the reasons the FBI covered up her criminal activity.....

They destroyed the servers.

They destroyed all of their blackberries.

They said they lost one of the subpoenaed laptops in the mail....

They were allowed to destroy their laptops after the FBI had them...per agreement with the FBI, ending any future possibility of investigations......

They used BleachBIt...a high tech program to destroy emails on the illegal servers....

Yet there was no "intent" to commit crimes?

320....really....really?

And on to Bhengazi....the AMbassador...her alleged good freind.....requested security upgrades and more security people for months...and was repeatedly refused.......the State Dept. also refused additional security offered by the Military, forcing the Ambassador to also have to refuse since his superiors turned down the support.......

The night of the attack....no rescue mission was sent, or staged......

4 men died...under her watch at the State Department....

320...really?

The refugee crisis in Europe is a direct result of hilary pushing to remove Qadafi from power....and the refusal to keep troops in Iraq led to the creation of isis......and no, it wasn't because they couldn't get a Status of Forces AGreement....they had that, they turned it down according to Michael Rubin who talked to the Iraqi government......

320...really?

Mistake after mistake and disaster after disaster....hilary is a nightmare....

You assessment is bullshit. The status of forces agreement that the Iraq's were willing to sign would mean that US military personnel could be tried in Iraqi courts if there were any "problems", i.e. if a US soldier shot an Iraqi, he/she would be tried in an Iraqi civilian court. The US would not sign such an agreement.

Refugees aren't flooding into Europe because Qaadafi was outsted. They're flooding into Europe because Assad is President of Syria, and he's being protected by the Russians. Assad has been slaughtering his own people for years.

You don't even know what's going on in the world, you just parrot the latest garbage issuing out of Hannity's mouth as gospel.

Get informed and stop being such a pushover for those who would take advantage of your ignorance.

Syria is the biggest but Eritreai not far behind... Very few Libyans...