Hillary Clinton and "Intent" -- Can the Rest Of Us Get A Mens Rea Defense From Prosecution?

Yesterday, the FBI said that Hillary Clinton should not be prosecuted because, though she clearly violated laws about management of confidential information, she had no "intent" to do so.  Two thoughts

  • Even if she had no intent to violate secrecy laws, she did - beyond a reasonable doubt - have intent to violate public transparency and FOIA laws.  She wanted to make it hard, or impossible, for Conservative groups to see her communications, communications that the public has the right to see.  In violating this law with full intent, she also inadvertently violated secrecy laws.  I don't consider this any different than being charged for murder when your bank robbery inadvertently led to someone's death.
  • If politicians are going to grant each other a strong mens rea (guilty mind or criminal intent) requirements for criminal prosecution, then politicians need to give this to the rest of us as well.  Every year, individuals and companies are successfully prosecuted for accidentally falling afoul of some complex and arcane Federal law.   Someone needs to ask Hillary where she stands on Federal mens rea reform.
  • DaveK

    What Comey did was to avoid committing the crime of lèse majesté. One mustn't offend Her Majesty's dignity with a tawdry criminal indictment!

    We have become 18th Century France!

  • CC

    Ask Petraeus how the lack of intent worked out for him...
    I was unaware that intent is ever a defense with national security issues.

  • BobSykes

    Comey's presentation of the strong case against Clinton puts a spot light on his decision not to recommend prosecution. It shows that the decision was not his, that he was merely following orders from Lynch and Obama. Comey has, in fact, demonstrated the corruption in Washington. The question is, Did he do so knowingly?

    However, Comey's statement pales into insignificance compared to Judge Posner's repudiation of the Constitution and his claim that the Constitution should have no influence on how judges decide cases. Posner, a sitting judge on the US Court of Appeals in Chicago, seems to be saying that judges can decide cases on whims and need not provide any legal rationale.

  • J_W_W

    I have a feeling her response to the Mens Rea question will be... "shut up peon!"

  • ErikEssig

    Maybe someone will ask her at her next press conference. Except she does have press conferences.

  • morganovich

    this is particularly extreme as negligence in handling classified info is, in and of itself, specifically defined as a crime.

    intent explicitly does not matter. negligence is a crime.

    ask absolutely anyone who handles classified information. they will tell you this. you get multiple briefings, meetings, and tutorials on it. it is explained over and over VERY clearly to everyone who gets granted secret or especially top secret clearance.

    there is simply no way to get on such lists and not be told these rules.

    the whole point of this system is to force people to be careful and not expose information by making negligence a crime. merely punishing intent would not cause people to use sufficient care.

    this is a flat out sham.

  • Rondo
  • ErikTheRed

    Why is anyone even surprised or angry about this?

    1) The Clintons have been famously corrupt since Bill was well-known for having a nose like a vacuum cleaner and sexually harassing fives back when he was governor of Arkansas. I remember this even before he ran for President and had this swept under the rug. You don't get a net worth of $200,000,000 as a "public servant" without some industrial-scale graft and some large piles of bodies (bigger in the Middle East than domestically). That this would be the last straw or magic moment or whatever that brings them down is laughable.

    2) Republicans can shut the hell up. 99.9% of politicians are just as bad as the Clintons, if not worse (the Halls of Congress make the Catholic Church look like Neverland Ranch). The only thing remarkable about the Clintons is how flagrant they are about some things and how bad they are at covering other things up. But this should not in any way be mistaken for an unusual level of corruptness.

    3) The silver lining about this is that a few Republicans are getting over their ridiculous FBI worship. The FBI (when it's not prosecuting low-IQ people that it entraps in terrorist "plots" in order to pad its budget and the occasional Martha Stewart just for lulz) is nothing but praetorian muscle for the politically-connected. Washington is best understood as a turf war between various gangs of thugs, and the FBI is just the enforcement division for whichever gang is in charge.

  • randian

    Also note Hillary's precise words when she proclaimed her innocence in interviews. She said she didn't send or receive emails that were *marked* classified, not that she didn't send or receive classified emails. If course she didn't, the required markings where either stripped or not made.

  • wilfranc

    I'm with you on the FOIA, not just for conservatives, but for history. The only reason to have a server in her home was control. But be clear, should someone like myself not answer a federal agent truthfully about something I do that is legal, I can serve jail time like Martha Stewart.

  • Jason Calley

    Hey Erik, "Washington is best understood as a turf war between various gangs of
    thugs, and the FBI is just the enforcement division for whichever gang
    is in charge."

    That is perhaps the single most accurate statement I have read today.

  • Bram

    Technically it wasn't in her home - that would have been more secure as she and Bill have armed guards.

    It was in a closet in Colorado dry cleaning / computer shop. Physical access to the Secretary of State's server was available to anyone with the skills of your average burglar. Of course the Russians, Chinese, Israelis, and everyone else has everything that ever crossed that machine.

  • http://devilish-details.blogspot.com/ mesaeconoguy

    Bingo.

    The standard was gross negligence (somehow different than extreme carelessness?), which she clearly violated.

    Hack job.

  • ano333

    Great comment, except this:

    "(the Halls of Congress make the Catholic Church look like Neverland Ranch)"

    Given recent history, it seems the church has made itself look like Neverland Ranch...

  • mlhouse

    Wouldn't committing these crimes with intent be espionage and treason??????

    It was a mistake to go down the criminal path with this issue in the first place. Obama's "Justice" department has become completely politicized and the chances of indicting the presumptive Democratic nominee for President of the United States was always ZERO. With no indictment, Hillary and her fellow travelers now claim that they were exonerated and that the entire affair was just a mean, nasty Republican attack. Just. Like. The. Others.

    Instead, the real "crime" was the server itself, not its content. By KNOWINGLY using a private server Hillary Clinton as Secretary of State with explicit intent sought to withhold from the People of the United States any communication or pieces of information that she did not want to make public. Because of this the American people cannot trust this women with even more executive power; the power to run the FBI itself, the FEC, the SEC, the CIA, the NSA, the Secret Service, the FCC. When her appointments gets to decide what is criminal and what is not, how will that work for this country. WHen it comes down to it, Hillary Clinton's biggest executive experience is that she has been investigaged by just about every executive agency for wrong doing and when she takes her inaugaration she will use "Unindicted Co-Conspirator" as her middle name.

    While I am not a big fan of Donald Trump, everything, even resorting to him as the only real alternative, must be done to stop Hillary Clinton from becoming president.

  • Zachriel

    "Throughout Secretary Clinton’s tenure, the server was located in her New York residence." — Inspector General's report, Evaluation of Email Records Management and Cybersecurity Requirements.

  • Zachriel

    Coyote: Even if she had no intent to violate secrecy laws, she did - beyond a reasonable doubt - have intent to violate public transparency and FOIA laws.

    If you prosecuted the use of personal email for State Department business, then you would have to prosecute most of the State Department.

    Classified Data Found in Personal Email of Colin Powell and Aides to Condoleezza Rice
    http://www.nytimes.com/2016/02/05/us/politics/state-dept-classified-data-found-ex-secretaries-personal-email-john-kerry-condeleezza-rice-colin-powell.html

    The problem is that technology has advanced much faster than policy, while classification can include things that are in the public domain. For instance, an email to Hillary that mentions drone strikes in Yemen are classified secret, even though you can read about it in the New York Times.

  • ErikTheRed

    That phrase was inserted deliberately to annoy pedants and amuse everyone else, except for Catholics. :-)

  • ErikTheRed

    The turf war bit was cadged from Ayn Rand; the FBI bit just writes itself.

  • ErikTheRed

    My favorite meme on the subject (put out before the announcement)...

  • NormD

    I have worked at several companies that had very clear No Use of Personal Email for Corporate communication since the mid 1990's. I was involved in firing one sales rep who did this. The only exception was if corporate email was unavailable and critical business required immediate communication and in this situation users were told they must CC corporate email (which would be delivered when the server was back up). If twenty years later "most of the State Dept" still do this, then "most" of them should be fired.

    We did for several reasons including:

    1. So all communications were recorded and accessible by the company in case of legal issues
    2. So another employee could take over in case an employee left.
    3. So an employee could not continue to communicate as if they were at the company if they left the company.
    4. So corporate communications were kept secure. Who knew who had access to private email.

    And we weren't even subject to FOIA.

    BTW, if a person's boss was aware of such behavior and did nothing to stop it, they were disciplined, even fired. In the case of Clinton, that boss is Obama. How come he gets off scott free? What an Incompetent.

    My guess is that the statute of limitations has run out on Powell and Rice and in any case, Clinton was AFTER them and more should be expected AND their use was incidental, not even close to setting up a parallel email system.

    If the State Dept is so screwed up, whose fault is that that??? Clinton is not some flunky, she ran the place.

    If things are over-classified, its not the job of State Dept employees to decide to ignore the classification. If environmental regs are stupid, redundant, outmoded and pointless (many are), employees cannot just ignore them with no consequence. If ADA requirements are stupid and pointless (again many are) they cannot be ignored.

    You seem to think government employees are a cut above the public and its OK for them to ignore regs, but not the rest of us.

    Good god, you take the NY Times as a impartial source. Everything they write has a partisan spin. You might as well quote the DailyKos (are they still around?)

  • TruthisaPeskyThing

    Zachriel, The Inspector General did mention that there were some aspects that were similar between Hillary and her predecessors; however, he also emphasized that there were differences. for example, her predecessors cooperated. She did not. Her predecessors turned over e-mails requested. She did not. The expected system was more sophisticated and obvious and clear cut for Hillary. She received warnings that her system was not in compliance. her predecessors did not lie about requesting and receiving clearance.

  • TruthisaPeskyThing

    I intend to use the Hillary defense to fight my traffic ticket later this month. I had set the cruise control on the legal limit, and I have a picture of it to support my intention. The officer's radar says that I was going 10 mph faster than that. Even if the officer's radar is correct, I can clearly show that my intent was not to violate. (Hillary cannot show that her intent was not to violate -- Comey just says that he does not know how to prove what her intent was.) I will let you know the results in the traffic court. I am a regular guy whose name does not end in Clinton, and I am not expecting a positive outcome.

  • randian

    When the standard is gross negligence, as it is for several statutes she violated, you don't have to prove what her intent was. Even if you did, that's a matter for the jury not him. They can infer whatever intent they like from her actions. Shove her corruption in the jury's face and see what they do.

  • Zachriel

    TruthisaPeskyThing: The Inspector General did mention that there were some aspects that were similar between Hillary and her predecessors

    The point of comparison is that Powell used an AOL account for official business, that there was classified information on his home computer, and that he didn't keep records.

    TruthisaPeskyThing: Her predecessors turned over e-mails requested.

    Powell turned over what he had, but he didn't archive them, so a complete record is not available.

  • Zachriel

    NormD: You seem to think government employees are a cut above the public and its OK for them to ignore regs, but not the rest of us.

    Not at all, however, the claim is that it was an indictable offense, but it was clear, at least based on publicly available information, that no such indictment would occur. Rather than work together to fix the problem, it became just another opportunity to bash Clinton.

    Furthermore, Republicans and their media associates worked hard to convince their base that Clinton had committed a crime with her use of email, another in a long line of such attacks. Wallowing in truthiness has led to Trumpism.

  • Zachriel

    That's about right.

  • joe - constitutional scholar

    mens rea is so obvious

    The real problem is obtaining a conviction based on a jury pool - No way that a democrat (finding one with integrity would be difficult) would vote for conviction. You would have to strike at least 30% of the population from the jury pool.

  • CT_Yankee

    Someone needs to ask Hillary where she stands on Federal mens rea reform.

    Effectively the reform movement has just taken a giant leap forward. In an unrelated, yet quite similar case (military officer sent classified information (once?) by personal email to a base commander about a likely threat (that proved real) in 2012. He faces being thrown out of the military, is fighting to stay, and his lawyer JUST ADDED THE "CLINTON DEFENSE" to his arguments.

    Once violating national security meant "life in front of the firing squad", or perhaps facing a harsh punishment such as standing in front of a 21 gun salute. Now, violating national security has been downgraded to "Meh".

    details:
    http://www.marinecorpstimes.com/story/military/2016/07/07/marines-attorney-if-hillary-clinton-wasnt-prosecuted-officer-shouldnt-discharged/86797536/?utm_source=fark&utm_medium=website&utm_content=link

  • NormD

    You do seem to live in an alternate reality. The question is: If anyone else (a person lower down the food chain or, gasp, a republican, had done the same thing as Clinton, what would have been the reaction?

    Am I honestly to believe that if President Bush set up an private email server and had his staff use it with the intent of evading FOIA requests, lied about it, gave the same lame excuses Clinton gave, not reveal it until it was accidentally discovered years later and then had his lawyer delete (beyond recovery) all "personal" emails (all those yoga classes you know) before turning the emails over, and then his AG said there was no indictment, you oh-so-fair leftists would just accept this??

    Admit it. You are a partisan hack. If your guys do it, its OK. If the other team does it, its time to take to the streets.

    What "conservatives" demand is that there be ONE set of laws for everyone. What you want are laws that wink at "good" people and punish "bad" people. This never ends well.

  • NormD

    BTW, The FBI also gave Clinton a big pass when they did not interview her very early in the investigation. What they almost universally use to catch people is to interview them early, do the investigation, and if their early statements don't match the facts, charge them with lying to a Federal Officer. If Clinton told the FBI the same things she was saying in public, she would now be charged with several felonies. By waiting to interview her until after they completed their investigation she dodged this bullet. No one else gets this treatment. Why Clinton?

  • Zachriel

    NormD: Am I honestly to believe that if President Bush set up an private email server ...

    "Over 5 million emails may have been lost.... The administration officials had been using a private Internet domain, called gwb43.com ... "
    https://en.wikipedia.org/wiki/Bush_White_House_email_controversy

    NormD: What "conservatives" demand is that there be ONE set of laws for everyone.

    According to Comey, prosecuting Clinton would be special treatment.

    Comey: That would be treating somebody differently because of their celebrity status or because of some other factor that doesn't matter. We have to treat people, the bedrock of our system of justice, we have to treat people fairly. We treat them the same based on their conduct."

  • jdgalt

    Celebrities and especially office holders should get harsher treatment, because making an example of one of them will be much more visible than making an example of you or me would be.

  • Zachriel

    jdgalt: Celebrities and especially office holders should get harsher treatment, because making an example of one of them will be much more visible than making an example of you or me would be.

    That's contrary to equal protection. However, they shouldn't get more lenient treatment either.

  • jdgalt

    Look at the past few years' Supreme Court decisions, especially the several involving ObamaCare. Clearly most of the "justices" have no principles -- they do decide cases on whims and make up the rationales later, and anyone who reads the cases knows it.

  • jdgalt

    The Equal Protection clause is read much too broadly. It's only supposed to cover race discrimination. Otherwise the failed Equal Rights Amendment would never have had to be tried.

  • Ann_In_Illinois

    I thought that one of the recent revelations was that there was more than one server. Were they all kept in her residence?

    Also, I believe that the relatively low level firm hired to handle her security at one point admitted that it had made routine backups (a reasonable thing to do). So there may have been additional opportunities for foreign governments and enterprising locals to get access.

    My, what a tangled web we weave...

  • Ann_In_Illinois

    Petraeus made the mistake of being honest, once caught. Honesty is not the type of mistake a Clinton is likely to make.

  • Ann_In_Illinois

    Yes, but isn't it true that there literally was no way for Powell to use his government email to email anyone outside the State Dept (or perhaps it was outside government)? The system at the time did not allow it. He asked them to change it, they couldn't or wouldn't, and the approved alternative was for him to use his private email.

    I've heard that Abraham Lincoln's Secretary of State didn't use government email, either. Those Republicans!

  • Zachriel

    Let's read it, shall we?

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    "any person"

  • jdgalt

    Read your way, even criminals can't be discriminated against. That's obviously nonsense.

  • Zachriel

    jdgalt: Read your way, even criminals can't be discriminated against. That's obviously nonsense.

    The distinction is called due process.

  • Zachriel

    Ann_In_Illinois: Yes, but isn't it true that there literally was no way for Powell to use his government email to email anyone outside the State Dept (or perhaps it was outside government)?

    If true, so? Does that mean he should have classified information on his home computer? Or that he should conduct sensitive business on an AOL account? No, Powell was not approved to received classified information through AOL.

    Powell argues that the classified emails weren't significantly sensitive, which is a problem with over classification. For instance, seven of the eight top-secret emails found in Clinton's emails were classified top-secret because they mentioned drone programs — even though they were discussing widely published reports of drone attacks.

    But this points to the other problem, that technology has far outpaced government policies with regards to security. Powell engaged in a technical violation of policy, but certainly not something that anyone would suggest should lead to criminal charges. One wouldn't even normally suggest administrative action, but rather, a change policies and procedures.

  • Ann_In_Illinois

    Powell didn't use his government email because it was not technically possible at the time. Clinton easily could have used her government email account but instead went to huge effort to avoid it because she wanted to dodge her legal obligations regarding FOIA requests.

    Besides, Powell isn't running for President.

  • Zachriel

    Ann_In_Illinois: Clinton easily could have used her government email account but instead went to huge effort to avoid it because she wanted to dodge her legal obligations regarding FOIA requests.

    The FBI rules that there was insufficient evidence of intent. As mere negligence hasn't resulted in criminal charges in over a century, it would not be equal treatment to charge her now.

    Comey: "That would be treating somebody differently because of their celebrity status or because of some other factor that doesn't matter. We have to treat people, the bedrock of our system of justice, we have to treat people fairly. We treat them the same based on their conduct."

  • markm

    The FBI director said that it's not clear that she understood the classified markings. That's an astounding level of stupidity; if true, she'd be fired from McDonalds after screwing up every order. Maybe this should be Trump's slogan: "FBI found Hillary too stupid to handle national secrets."

  • Zachriel

    mesaeconoguy: The standard was gross negligence (somehow different than extreme carelessness?), which she clearly violated.

    Comey was clear that carelessness has never been prosecuted, so it would be unequal treatment to prosecute her now. Indeed, working around antiquated policies is rampant in the U.S. government, which hasn't been able to keep up with technological change; hence, Colin Powell using AOL for email.

  • http://devilish-details.blogspot.com/ mesaeconoguy

    Completely and entirely irrelevant. Carelessness is not the standard, gross negligence is.

    Comey fabricated a new element not present in statute.

    What Comey did was render a political decision in a legal matter.

  • Zachriel

    mesaeconoguy: Comey fabricated a new element not present in statute.

    That is not correct. The standard of gross negligence has not been applied in over a century of practice. To apply it now would be unequal treatment.

  • http://devilish-details.blogspot.com/ mesaeconoguy

    Incorrect. Gross negligence is routinely applied. The statute in question is written the way it is precisely because of the sensitive nature of state secrets.

    Not applying it in this case created a giant double standard.