Here’s a telling passage from an exchange between Rep. Trey Gowdy and FBI Director James Comey, reported by Politico:
“In interest of time, because I have a plane to catch tomorrow afternoon, I’m not going to go through anymore of the false statements but I am going to ask you put on your old hat. False exculpatory statements, they are used for what?” Gowdy inquired.
Comey responded, “Either for the substantive prosecution or for evidence of intent in a criminal prosecution.”
“Exactly. Intent and consciousness of guilt, right? Is that right?” Gowdy asked. “Consciousness of guilt and intent. In your old job you would prove intent as you just referenced by showing the jury evidence of a complex scheme that was designed for the very purpose of concealing the public record, and you would be arguing in addition to concealment the destruction that you and I just talked about, or certainly the failure to preserve. Would you argue all that under heading of content–intent. You would also be arguing the pervasiveness of the scheme, when it started, when it ended and number of emails, whether they were originally classified or up-classified, you would argue all of that under the heading of intent. You would also probably under common scheme or plan argue the burn bags of daily calendar entries or the missing daily calendar entries as a common scheme or plan to conceal. Two days ago, director, you said a reasonable person in her should have known a private email is no place to send and receive classified information. You’re right.”
The emphasis is mine. I continue to have problems explaining Director Comey’s decisions in the light of his own statements.
Intent is the weak point in Comey’s explanation, but there is a fundamental distinction being overlooked. There are two types of intent crimes:
General intent, requires the state to prove that the act was intentional, even if no resulting harm was intended.
Specific intent, requires proof the harm was intended.
Specific intent crimes are rare, and difficult to prove. I’ve frequently opined that when Congress passed the torture statute as a specific intent crime, the purpose was to make the law unenforceable. Comey seems to be saying that the statute requires specific intent, and there is no evidence that Clinton specifically intended to harm the United States. In a general intent statute, the only thing that would be required is proof that her actions were illegal and deliberate. Most regulatory crimes are general intent crimes.
Andrew McCarthy says that Comey has indicated a belief that the “gross negligence” standard is unconstitutional. If so, this starts to get pretty weird.
http://www.nationalreview.com/corner/437560/fbi-director-comeys-suggestion-congresss-gross-negligence-statute-invalid
That’s not his call to make. IMO there’s a better case that the criminality of lying to federal officials is unconstitutional and someone pretty prominent has already been sent to prison for that.
Was there intent to conceal the public record? That is Gowdy’s claim. What keeps getting forgotten is that those emails are on government servers on the other end. Were those being eliminated?
Steve
Posted earlier at Power Line:
This is how it is playing. Comey had two choices. Referral or no referral.
In the case of a referral the content would be confidential. Lynch sits on it for a week then says her prosecutors decided not to indict. Case closed and take the flak.
In the case of no referral then the same thing. Attorney work product. No disclosures.
In both cases there would be leaks but anonymous only. A known leaker is subject to criminal sanctions for a number of reasons.
Comey pulled a Captain Kirk a la the Kobayashi Maru. (https://en.wikipedia.org/wiki/Kobayashi_Maru).
He stood up there, made sure everyone understood that he had a gun to his head, and told the whole story. Now he’s telling it again in detail in a public Congressional hearing.
The smartest people in the room found out they weren’t.
@dave, I actually think the misdemeanor charge is the easiest starting point. The “gross negligence” standard strikes me as odd because it assumes that Clinton did something that was permitted, but did so in a reckless or careless manner.
The misdemeanor statute reads:
“Whoever…becomes possessed of documents or materials containing classified information…knowingly removes such documents or materials without authority and with 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.â€
This is a general intent statute, requiring proof that Clinton intentionally removed documents to an unauthorized location and retain them. The servers were not authorized, at least some of the documents were classified, and they were retained so long that some of them were deleted or reduced to fragments as a result of transfers to new servers. There may be a factual question about whether she “intended to retain” them, though ultimately she did retain them, and thus there is probable cause.
I just think Comey didn’t want to bring a misdemeanor charge in such a high profile situation. The felony statute adds some other factors, but if its not legal to redirect classified mail to a personal server, it kind of doesn’t matter if it was done knowingly or recklessly.
So many theories…however the bottom line is that Clinton once again skates, and seemingly is unobstructed from her lifelong goal of becoming POTUS.
No Cojones Comey and Department Political Justice is how many will interpret this latest Clinton fiasco and how she gets away with her acrobatic version of the “truth.”
Let’s see if this will work:
I liked Comey’s presser, but the bits and pieces of testimony I saw today showed me he probably doesn’t understand the investigation deeper than an inch or two.
Anyway, there is a lot to digest, so let’s break it into pieces:
1. Federal records/FOIA violations:
– The FBI didn’t look at this at all. I don’t know why. Has anyone asked Comey?
– Has anyone ever been prosecuted for failing to turn over records or for incompetent records management? I don’t know.
2. Unauthorized disclosure of classified information
– This is what the FBI investigated.
– I’ve thought all along that Clinton had not done enough personally to warrant a criminal prosecution. To me the “gross negligence” was in authorizing her server to be setup in the first place – basically allowing a system with crap cybersecurity to be the focal point for the most important foreign office on the planet.
– What did surprise me is no one on her staff or in the DoS was referred for prosecution. There were emails with classified information that had classification markings. How did they get there? Classified information doesn’t get to unclassified systems via osmosis. The leakage or spillage of classified from one system to another is a potential crime, yet it’s never explained how it happened.
3. Cybersecurity – there oughta be a law.
– To me the worst part about this is the counter-intelligence aspect. Despite what some have wrongly claimed, her security was crap. During the first 3-4 months she was secretary her server did not even have an encryption certificate! During this period she reportedly travelled to several countries with her blackberry including China.
There are a lot of actors out there that can penetrate well-guarded systems with relatively small flaws and remain undetected for days or weeks. Yet we are expected to believe that one of the top intelligence targets on the planet accessing a homemade server over an unencrypted wifi link from China wasn’t penetrated? It’s really beyond belief.
But it gets worse, what about her blackberry? It wasn’t issued by the government, was it ever checked to see if the software was altered? If a hacker has control of your email, they can spoof you to “update” your phone and suddenly it’s turned into a mobile listening device and hidden camera with a wifi connection! Someone should ask Sec. Clinton if her Blackberry needed to be charged more often after visiting China – how funny would it be if she said, “why yes!”
Interesting tangent – did you know Mark Zuckerberg, founder of Facebook, puts a piece of tape over the camera and microphone of his laptop? The article also quotes another recently-famous person who does the same thing! (Clickbait alert).
The woman is a lawyer. She is surrounded by all the talent she desires. She is deemed sophisticated enough to be POTUS.
Come on, people.
This reminds me of the cattle futures trading excuses. The woman practiced securities law. She “made” successful trades worthy of lotto odds………….but she had no idea what was going on.
Right.
Hillary Clinton will be on trial for the next four months, and the jury will decide November 1, 2017. If you think she is innocent, vote for her. If you think she is guilty vote for Trump. If you are morally indeterminate, vote for somebody else. If you do not give a damn, stay at home.
Either, you are for the rigged system, or you are against it. There is no middle ground. It looks like the Trump supporters were right, and the #NeverTrump were not just wrong. No, they are supporting the rigged system.
The funniest thing is that for the Trump supporters this is just another day of getting fed a shit sandwich. It tastes awful, but after a while, you realize it ain’t gettin’ any better. You just eat it, and hope one day you will have a little more bread to disguise the taste.
For all you super-duper high information voters know-it-alls, how does your shit sandwich taste? Guess what? You would do just as well to buy a “wife-beater” tank-top for the old man and a tube-top for the little lady, and you can get a gas guzzling carbon pollution spewing truck with a rifle rack. To the Left, you are nothing more than racists or racists-in-waiting.
You can either jump into the pool willingly, or you can wait to be shoved in by the progressives. They do not take prisoners, and they make up the rules as they go along. Enjoy your friends. I am quite sure that they find your grovelling about not being racists quite entertaining.
For all the Leftists, blah, blah, blah. I know. I am a racist. My mexican dogs are racist. My computer is racist, and my peanut butter and jelly sandwich is racist. Oh wait, that fart was racist, also.