The Clinton Thread II

[Kelly]

They aren't going to get it Matt....just not going to happen. That's ok....it's just not gettin' through the noggin.....

 

[chaseter]

Lex I'll give a pass on because I can see he is genuinely trying to find a flaw that isn't there. Chaseter is just a contrarian that will argue against most things for the sake of arguing.

I'm happy to know you stand behind all lawyers because they went to law school. That means you agree with OJ being innocent because his lawyers went to good law schools.

 

[Matt]

They aren't going to get it Matt....just not going to happen. That's ok....it's just not gettin' through the noggin.....

Clearly. I don't know how you do it every day. I envy your patience as a teacher.

 

[Kelly]

Clearly. I don't know how you do it every day. I envy your patience as a teacher.

My students are teachable....

 

[chaseter]

U.S. v. Dotterweich is a strict liability case. Strict liability cases (such as statutory rape, certain public health code violations, etc) waive intent because the Defendant is knowingly conducting high risk behavior (or should know). Basically when you enter into certain acts, there is an assumption of risk so high that even if you act in good faith, you are still criminally liable. They still include an intent component --- the intent to undertake the high risk act.

Like Lex, you are wrong. Even strict liability crimes require intent, just not intent to commit the unlawful act, rather intent to engage in high risk behavior with full knowledge of potential consequence.

Key component of criminal law:

Guilty act
Guilty mind

No crime without either. Its that simple. You are wrong.

Harboring classified data on unsecured home servers is not high risk behavior?

 

[DJ_KiDDvIcIOUs]

The simple fact of the matter is before this there was no specific law on the books detailing this kind of behavior was illegal. That has been rectified thanks to Clinton's stupidity. But just like many times in the history of the Clinton's, technically, the law was not broken.

Not sure why this is hard to grasp for you guys.

 

[Matt]

My students are teachable....

Harboring classified data on unsecured home servers is not high risk behavior?

Only if it is statutorily defined as such. It is not. Thus, no strict liability.

 

[Kelly]

Good grief guys.....

 

[chaseter]

Ok, and Kelly.

Related: That's what is both bad and good about the law, it isn't black and white.

 

[Donner]

I'm happy to know you stand behind all lawyers because they went to law school. That means you agree with OJ being innocent because his lawyers went to good law schools.

That's not it at all. OJ's lawyers were damn good. That's why he went bankrupt paying them. It's not about being right or wrong, it's about what you can prove. I think the bigger issue in this case is the fact that juries are made up of regular people and not highly educated experts. I wouldn't trust a jury of my peers. I would want smarter people on the panel.

Matt clearly knows the law better than you and he's proved that over the last 2 pages. You're arguing against something you don't understand. This is like arguing with a neurosurgeon about the best way to operate on a spine.

 

[chaseter]

That's part of the law I disagree with. Justice is not blind or fair in all cases.

Being a lawyer doesn't mean you are always right. Clinton got a super light sentence for a child rapist. Having a degree doesn't make you infallible. I disagree with Matt in that I think Clinton is guilty and fully well knew what she was doing just as I think OJ is guilty. This is an example of the justice system failing. I was arguing for a conviction. Matt was arguing for a dismissal.

 

[Donner]

What do you mean by right? Do you mean ethical? Matt is using the letter of the law to state how Clinton isn't guilty in this case. You disagreeing with the law does not necessarily mean that the justice system is failing. This isn't the same as with OJ, given the theatrics of the trial and how juries can be swayed by emotion and not fact.

Matt is using facts to argue his position. You are using emotion.

 

[moviedoors]

This is just hysterical.

 

[Kelly]

And yet you still miss the entire point of what Matt has been saying....

Knowledge does not equal intent...

WHAT WAS HER INTENT? What did she plan on doing that would equal her being guilty of anything that was on the books at the time this all happened?

Where is her guilt of "espionage"? What 3rd party was she handing over government secrets to?

I can show you where her guilt of "stupidity" and "bad judgment" was, but where is her intent of wrong doing on anything that is in the law? CRIMINAL LAW not the Law of Ethics....

Exactly what was her intent? If they cannot spell it out, they cannot prosecute it....

You can go all day with ridiculous examples of breaking traffic laws or whatever, but exactly what was her intent, and if you can spell that out, then what law did she intend to break?


AND DON'T MOVE THE GOAL POST.....we aren't discussing what is good or bad law, we are discussing what was on the law books when this all happened. We are not talking about Hillary Clinton's ethics, we are discussing her intent. We are not discussing whether or not she broke protocol, that does not matter in this case, the law does....What laws we agree with are not in play here, is Hillary Clinton ethical or not, is not in play here....what laws did she break, and what was her intent? If you cannot answer those two things then there is no reason to be debating this, because if you can't answer those two things, then there is NOTHING TO DEBATE.

 

[chaseter]

What do you mean by right? Do you mean ethical? Matt is using the letter of the law to state how Clinton isn't guilty in this case. You disagreeing with the law does not mean that the justice system is failing. This isn't the same as with OJ, given the theatrics of the trial and how juries can be swayed by emotion and not fact.

Matt is using facts to argue his position. You are using emotion.

Ethics is a whole other topic.

The law is not infallible and neither are it's administrators. Otherwise, there would never be no controversy, ever. DJ would be applauding George Zimmerman's innocence according to the law.

 

[Kelly]

Ethics is a whole other topic.

The law is not infallible and neither are it's administrators. Otherwise, there would never be no controversy, ever. DJ would be applauding George Zimmerman's innocence according to the law.

George Zimmerman was lucky in that the prosecution went with a charge where intent was key, they could not prove INTENT to match the charge.....OMG, THERE IS THAT WORD AGAIN.

 

[Marvolo]

A lot of very angry Republicans today. It's like the Grinch stole their Christmas.

 

[Unbreakable Lex]

And yet you still miss the entire point of what Matt has been saying....

Knowledge does not equal intent...

WHAT WAS HER INTENT? What did she plan on doing that would equal her being guilty of anything that was on the books at the time this all happened?

Where is her guilt of "espionage"? What 3rd party was she handing over government secrets to?

I can show you where her guilt of "stupidity" and "bad judgment" was, but where is her intent of wrong doing on anything that is in the law? CRIMINAL LAW not the Law of Ethics....

Exactly what was her intent? If they cannot spell it out, they cannot prosecute it....

You can go all day with ridiculous examples of breaking traffic laws or whatever, but exactly what was her intent, and if you can spell that out, then what law did she intend to break?

The point is that Clinton took classified information that was in the custody of the United States Department of State. The word espionage is just a word here and not the act. It's only being used here because it is the unofficial title of the Act in which the laws she broke reside. See Espionage Act of 1917. 1917. Emails have since been admitted as evidence, the same as an official written memo. Even the Director of the FBI calls her actions unreasonable. The law interprets against her. The classified documents existed outside the custody of the US Government.

Again, she took classified information out of the US Government's custody. Every letter she sent in communications with certain recipients made the emails classified the moment they were typed. These classified documents existed outside of the US Government's control and punishable by fine and/or ten years imprisonment.

She signed an NDA disclosing consequences for breaking the Government's security protocols. She then willingly broke those laws because they were not flexible enough for her standard of living. In the process, she put American lives in danger and American interests at risk. This seems to be the makings of a trend that goes back 30 years.

ETA: I'll leave this topic with this. As someone that works in Information Assurance, I appreciate this case more than most. If anything comes from this fubar, I hope that it is policy reform across Governments, private sectors, and individuals. The Internet is an amazing tool to help accomplish many different tasks and I hope people fully grasp the need for security when security is needed.

 

[DJ_KiDDvIcIOUs]

Sounds like a broken record in here.

 

[Thundercrack85]

Hillary didn't break any laws... I guess (not an expert, but I will take your word for it), but I don't buy this ignorance thing. Especially given what was going on at the time. I recall reading that people had been telling her she was breaking protocol.

 

[SV Fan]

Hillary didn't break any laws...

Hillary is badass

[YT]L397TWLwrUU[/YT]

 

[Matt]

Kelly hit the nail on the head.


That being said, I would like to point out something so as to avoid distraction from the real issue. The OJ Simpson/George Zimmerman example is faulty.

OJ Simpson and George Zimmerman were questions of fact, properly reserved for a jury of their peers.

I don't know specific California and Florida statutes so I am going to use the common law definitions.

Murder is a voluntary killing of another human being the malicious aforethought (in other words, premeditated and malicious murder).

Guilty Act - Murder
Guilty Mind - Intent to kill (even if Zimmerman acted in self-defense, he still had to intent to kill in defense)

There is an act, there is intent underlying the act, as such, it is a crime.

Therefore, the question turns to the jury to determine whether or not the state has properly proven each element of the crime beyond a reasonable doubt. The elements are:

Voluntary killing of another human being

With malicious aforethought (premeditation)

The jury must consider whether the state proved these two elements, beyond a reasonable doubt. These are questions of FACT for the jury to determine, unless the prosecution fails to make even a prima facie case (a case that a reasonable jury MIGHT find for the prosecution, its not a high standard), in which case a judge may dismiss it as a matter of law.

Now with Zimmerman, it is a bit more complicated as he adopted an affirmative defense (a defense where you acknowledge that you committed the crime but offer a legal justification, in his case self-defense), therefore the burden shifted to him to prove that he did act in self-defense and once he made a prima facie case of that, the burden shifts to the state to prove beyond a reasonable doubt that he did not.

But I digress, had the state been unable to establish a baseline guilty act supported by guilty intent, Zimmerman nor OJ could have even been indicted. Murder is a bad example because it is a per se case (intent is apparent on the face, due to the fact that someone is dead, through stabbing, whoever killed them had an intent) so let's use actus reus. Say the state could not find a body or any real evidence that anyone was ever killed. They have failed to show a guilty act. As such, legally, no crime took place (to clarify, you do not always need a body to establish an act of murder, but that is way off the point).

With Zimmerman and OJ we know that a crime took place, so it is a FACTUAL question of whether or not the Defendants committed the crime.

Now let's shift to the Clinton case using The Espionage Act for an example.

The guilty act would be transmitting the documents

The guilty intent would be doing so with the intention to provide the documents to a foreign government or actor.

There is a guilty act --- transmitting the documents to an unsecured government server.

There is no guilty mind though. There is absolutely NO evidence, even prima facie (which is again, low standard) to indicate that Clinton had any intention to transmit the documents to a foreign actor so that eliminates all but subsection F of the Espionage Act.

For a recklessness standard to apply (that is to say she was guilty of intending to behave recklessly), as is prescribed by Subsection F of the Espionage Act one of three requirements would have to be met:

Either she must have acted with GROSS NEGLIGENCE (a term of art...think along the lines of doing a line of coke with a member of the KGB and giving that person state secrets...that would be grossly negligent, not simply using an email server, that is what the law would define as mere negligence);

OR

She had to have knowledge that she was illegally removing the documents (and the laws with emails were at best unclear...you cannot charge a citizen with crime if the law does not specifically prohibit the crime or is unsettled);

OR

She had to have knowledge that a foreign actor had obtained these documents and then not reported it to a superior, which simply does not fit the factual scenario present.

In any of those three situations, she could have been charged under subsection F simply for reckless behavior (as the intent would be the intent to act recklessly). She did not.

Therefore there is not a LEGALLY sufficient case that she violated a law. As such, a prosecutor is FORBIDDEN from bringing charges. It would be against the Rules of Professional Responsibility and it would subject the prosecutor to a tort action of malicious prosecution (and probably some criminal liability as well)

There is a guilty act (transmitting documents), there is no guilty mind (as prescribed by the intent requirement of the statute).

Ergo, no charges can be filed for there is nothing to charge.

Meanwhile, with OJ/Zimmerman a crime undoubtedly took place (there was a guilty act with a guilty mind) so it was a FACTUAL question. In OJ's case whether or not he committed the crime, in Zimmerna's whether or not there was justification for the crime.

With Clinton, at this point, it was a legal question about whether an underlying crime even took place. It did not, not as is statutorily defined.

 

[Matt]

Hillary didn't break any laws... I guess (not an expert, but I will take your word for it), but I don't buy this ignorance thing. Especially given what was going on at the time. I recall reading that people had been telling her she was breaking protocol.

Protocol and law are two different things. One is not subject to criminal charges for breaking protocol.

 

[Matt]

The point is that Clinton took classified information that was in the custody of the United States Department of State. The word espionage is just a word here and not the act. It's only being used here because it is the unofficial title of the Act in which the laws she broke reside. See Espionage Act of 1917. 1917. Emails have since been admitted as evidence, the same as an official written memo. Even the Director of the FBI calls her actions unreasonable. The law interprets against her. The classified documents existed outside the custody of the US Government.

Again, she took classified information out of the US Government's custody. Every letter she sent in communications with certain recipients made the emails classified the moment they were typed. These classified documents existed outside of the US Government's control and punishable by fine and/or ten years imprisonment.

She signed an NDA disclosing consequences for breaking the Government's security protocols. She then willingly broke those laws because they were not flexible enough for her standard of living. In the process, she put American lives in danger and American interests at risk. This seems to be the makings of a trend that goes back 30 years.

ETA: I'll leave this topic with this. As someone that works in Information Assurance, I appreciate this case more than most. If anything comes from this fubar, I hope that it is policy reform across Governments, private sectors, and individuals. The Internet is an amazing tool to help accomplish many different tasks and I hope people fully grasp the need for security when security is needed.

Yes, there was indeed a guilty ACT. Willingness is not the same as a guilty mind. See my above post to explicitly breakdown how there is no intent to commit a crime (even though there was a guilty act). Thus, there was no crime. You cannot have a crime without both act and intent. Intent + no act = No crime (conspiracy and attempt have acts, planning and attempting are acts). Act + No intent = No crime. The public policy behind that is simple: the law does not exist to punish accidents.

 

[Thundercrack85]

Protocol and law are two different things. One is not subject to criminal charges for breaking protocol.

Depends on the protocol. I still question if they would have been this lenient if she wasn't who she is. They can always find laws.