Free Republic
Browse · Search
Topics · Post Article

Skip to comments.

How Hillary’s Defense Doesn’t Apply to the Rest of Us ^ | July 10, 2016 | James Copeland

Posted on 07/10/2016 12:43:42 PM PDT by Kaslin

Editor's note: This column was co-authored by Rafael A. Mangual.

FBI Director James Comey’s statement announcing that he would not recommend prosecuting Hillary Clinton for sending and receiving classified information through her unauthorized offsite email server was remarkable. In essence, Comey articulated facts showing that Clinton was guilty under the clear language of a federal statute, but he argued she should not be prosecuted because she intended to do no wrong. Yet in case after case involving people who aren’t cabinet secretaries or presidential contenders, for matters far less serious than mishandling national-security secrets, federal prosecutors seek criminal penalties for unintentional violations of the law. In a cruel irony, the Obama administration has scuttled one of its own late-term policy priorities—criminal-justice reform—because it opposes affording ordinary people the same defense Comey invoked for Clinton.

In his statement, Comey affirmed that Ms. Clinton had been “extremely careless” in her handling of materials relevant to national security. That’s notable because Comey was reviewing Clinton’s conduct under a statute, 18 U.S.C. § 793, which makes it a felony punishable by up to ten years in prison for individuals entrusted with such materials to permit them “to be removed from [their] proper place of custody or delivered to anyone in violation of his trust,” so long as the removal or delivery was “through gross negligence.” “Gross negligence” and “extreme carelessness”’ are essentially the same thing.

Even though Clinton was thus guilty under the statute, given Comey’s recitation of the facts, the FBI director recommended against prosecuting her because past prosecutions under this statute had involved more intentional conduct, rather than merely the gross negligence required by the law. Whether or not that’s a legitimate exercise of prosecutorial discretion, it turns the federal government’s ordinary position on its head. In most cases, the federal government takes the position that an individual who accidentally violates a criminal rule is guilty of the crime unless Congress explicitly specifies a higher intent standard.

Take, for example, the case of Lawrence Lewis. Mr. Lewis grew up in the projects of Washington, D.C. and worked his way from a position as school janitor to one as the chief engineer at a military retirement home. In 2007, he became a federal criminal. When the home under his charge was flooding, full of sick veterans, Lewis diverted a sewage backup into a storm drain he thought led to the sewage treatment plant. Unfortunately, the drain instead led to a creek, which fed into the Potomac River. Lewis was charged with a criminal environmental infraction that did not explicitly require prosecutors to prove criminal intent. It didn't matter that he was sincerely just trying to help retired veterans in a crisis situation.

Similarly, consider Bobby Unser, a three-time winner of the Indianapolis 500, who was driving a snowmobile near his ranch when he was caught up in a blizzard. Unser abandoned his vehicle to survive, without realizing that in the blizzard he had wound up in a protected federal forest—a crime punishable by up to six months in prison. The government prosecuted, and a federal judge and an appeals panel both determined that Unser was guilty because Congress had not explicitly required criminal intent for prosecution under the statute.

Prosecutions like Lewis’s and Unser’s are hardly anomalous, though they do run against longstanding legal tradition. Traditionally, to be guilty of a crime, an individual had to commit a guilty act (“actus reus” in the Latin) with a guilty mind (“mens rea”). Leading 20th century legal scholars like H.L.A. Hart and Lon Fuller, and leading jurists like Oliver Wendell Holmes and Robert Jackson, decried the concept of a crime without intent. As Holmes quipped, “Even a dog distinguishes between being stumbled over and being kicked.”

Unfortunately, today’s federal criminal code is filled with crimes that do not specify any required criminal intent at all—essentially penalizing innocent mistakes. A 2010 study by the Heritage Foundation and the National Association of Criminal Defense Lawyers found that in the 109th Congress, 64 percent of the newly enacted non-violent crimes penalized accidental violations of the law. And the number of federal crimes continues to grow—with an estimated 4,500 crimes in federal statutes and 300,000 crimes already in the federal regulatory code. Civil-libertarian attorney Harvey Silverglate estimates the average American is unknowingly committing three federal felonies a day.

To protect ordinary Americans like Mr. Lewis and Mr. Unser from being prosecuted for unknowingly violating one of the hundreds of thousands of federal crimes, Congressional leaders of both parties, in both the House and Senate, have authored legislation that would require some showing of intent unless Congress explicitly specifies otherwise—the approach taken in the Model Penal Code and many states. Congress would be free to depart from this “default” standard and require a lesser showing of intent, or even no showing, if it deemed a rule sufficiently important—say, one involving national security. But Congress would have to say so.

Unfortunately, the Obama White House came out against this legislation—and in the process has all but killed the chances of enacting criminal-justice reform, one of the administration’s top legislative priorities for its last year. Hopefully, candidate Clinton—having personally benefited from Comey’s invocation of criminal-intent standards—will have the courage to support extending those very protections to the rest of us.

TOPICS: Culture/Society; Editorial; Government
KEYWORDS: crimeandpunishment; fbi; hillaryrottenclinton

1 posted on 07/10/2016 12:43:42 PM PDT by Kaslin
[ Post Reply | Private Reply | View Replies]

To: Kaslin

Common law is dead. Laws now only apply to those without high level political connections.

2 posted on 07/10/2016 12:46:11 PM PDT by Blood of Tyrants (Socialism is always just one or a thousand or a million more murders away from utopia.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Kaslin

3 posted on 07/10/2016 12:46:16 PM PDT by dontreadthis (I finally came up with this tagline)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Kaslin

We all know that the Clinton Crime Family is above the law.

4 posted on 07/10/2016 12:47:09 PM PDT by seawolf101
[ Post Reply | Private Reply | To 1 | View Replies]

To: Kaslin

The "Too Dumb To Be President" Defense

5 posted on 07/10/2016 12:52:28 PM PDT by Iron Munro (If Illegals voted Rebublican 50 Million Democrats Would Be Screaming "Build The Wall!")
[ Post Reply | Private Reply | To 1 | View Replies]

To: Kaslin

So if intent is the key criterion, how is anyone ever going to be prosecuted or found guilty of anything?

some examples:

the drunk driver didn’t intend to drive drunk, or didn’t know he/she was legally intoxicated. They didn’t mean to cause a car crash or injure anyone else.

The armed robber didn’t mean to shoot or kill anyone in the commission of his crime.

The tax evader didn’t intend to evade paying his taxes.

Anyone in any sort of physical altercation resulting in injury or death, will say they didn’t intend to cause the resulting injury or death.

The arsonist didn’t mean to burn down the building. He was just building a campfire. He had no intent to destroy property.

And so on. You can imagine how this reasoning will absolve everyone from everything, if this takes root as an excuse for criminal behavior.

6 posted on 07/10/2016 12:54:34 PM PDT by Dilbert San Diego
[ Post Reply | Private Reply | To 1 | View Replies]

To: Iron Munro

This gets me too.

We are told Hillary is the smartest woman in the world. She’s brilliant, she’s better qualified than anyone else who ever ran for president. She’s the ideal woman to be the first woman president and all that.

Yet we are also told that she is too stupid or too confused or too lacking in knowledge, to know how to handle classified information. She’s too lacking in knowledge to know how to handle her job. But based on that, we are supposed to elect her to the very top job in this country.

She didn’t really understand computer systems or classified information, and didn’t intend to violate any laws or procedures. So we are supposed to cut her a break.

I wonder how the liberals would view this situation, if some Republican were in the same position.

7 posted on 07/10/2016 12:57:19 PM PDT by Dilbert San Diego
[ Post Reply | Private Reply | To 5 | View Replies]

To: Kaslin

“No intent” is the Big Lie.


End of subject!

Which is why Comey didn’t even address it. It’s literally the server in the bathroom.

8 posted on 07/10/2016 1:06:08 PM PDT by Talisker (One who commands, must obey.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Dilbert San Diego

If do not understand the intricacies of federal law or ‘newfangled’ technologies, and you are named to a powerful cabinet position, wouldn’t the prudent thing to do would be to hire a staff that does? Not understanding or being “careless” is not a valid defense. What she did simply should not happen. It certainly does not recommend her to be president.

9 posted on 07/10/2016 1:15:42 PM PDT by fhayek
[ Post Reply | Private Reply | To 7 | View Replies]

To: fhayek

She wasn’t careless. That’s a lie. She did it to hide her activities.

10 posted on 07/10/2016 1:23:16 PM PDT by bankwalker (Does a fish know that it's wet?)
[ Post Reply | Private Reply | To 9 | View Replies]

To: Kaslin

Oh. We know how. And we know why.

11 posted on 07/10/2016 1:29:19 PM PDT by stanne
[ Post Reply | Private Reply | To 1 | View Replies]

To: bankwalker

Of course, but my point was, even if you take her (and Comey’s ) stories at face value, it STILL is devastating to her qualification to be president.

12 posted on 07/10/2016 1:30:40 PM PDT by fhayek
[ Post Reply | Private Reply | To 10 | View Replies]

To: Dilbert San Diego
We are told Hillary is the smartest woman in the world. She’s brilliant, she’s better qualified than anyone else who ever ran for president. She’s the ideal woman to be the first woman president and all that.

Back in the day before Moochie Obama became the darling of the leftist media Hillary was their champion and was widely referred to as “The Smartest Woman in the World.”

That old age dementia must have taken quite a toll since those days if she is incapable of knowing what a classified document is.

BTW - how did she expect to do her job as Secretary of State if she knew she could not legally receive and send classified information on eMail???

13 posted on 07/10/2016 1:40:43 PM PDT by Iron Munro (If Illegals voted Rebublican 50 Million Democrats Would Be Screaming "Build The Wall!")
[ Post Reply | Private Reply | To 7 | View Replies]

To: Iron Munro
Oversight and Government Reform Offices — 202-225-5074

REFERENCE U.S. sources indicate that the extensive DOJ probe was more focused on the possibility that Hillary's private server was used to protect messaging in which Secy Clinton allegedly discussed quid pro quo transactions with private donors to the Clinton Foundation in exchange for influence on U.S. policy.

There is an abundance of evidence to prove that she did this.

REALITY CHECK--A provision in the Export Administration Regulations (EAR) is intended to prevent the govt from co-opting United States citizens and companies ..... EAR proscribes using US citizens as instrumentalities to advance a foreign government's foreign policy.

This clearly describe Hillary's activities at the State Dept. As a tax-paid govt employee, Hillary clearly used her tax-paid office for purely personal/political reasons.......involving the interests of foreign countries.......particularly foreign donors to the Clinton Foundation.

CONCLUSION--The Export Administration Regulations (EAR) apply to all "U.S. persons" (defined to include individuals and companies located in the United States and their foreign affiliates).

The provisions are intended to prevent United States citizens and companies being used as instrumentalities of a foreign government's foreign policy.

Offending persons are subject to the EAR law when their activities relate to the sale, purchase, or transfer of goods or services (including the sale of information) within the United States or between the United States and a foreign country.

This covers exports and imports, financing, forwarding and shipping, and certain other transactions that may take place wholly offshore.....and/or across the borders with private donors to the Clinton Foundation in exchange for influence on U.S. policy.


PULITZER PRIZE ANYONE?---an enterprising reporter (1) matches-up foreign policy decisions at Hillary's State Dept, (2) the timing of donations to the Clinton Foundation....and, (3) related foreign policy decisions by Obama.




OH, I JUST REMEMBERED...... the Clintons selling access to State Dept decisions and passing on classified information to interested parties for a foundation donation.......NEVER, EVER interfered w/ Obama/s OWN foreign policy initiatives (cue laugh machine).

14 posted on 07/11/2016 3:17:33 AM PDT by Liz (SAFE PACE A liberal's mind. Nothing's there. Nothing penetrates it.)
[ Post Reply | Private Reply | To 13 | View Replies]

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794 is powered by software copyright 2000-2008 John Robinson