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Washington Post: Scant evidence that Clinton had malicious intent in handling of emails

http://www.americanthinker.com/articles/2016/04/emmens_reaem_and_hillary_clinton.html

Great link on the discussion of all the issues being discussed. If it was linked earlier I apologize. Her signing the required forms when leaving office and then failing to comply creates a crime, whether she is charged or not appears to be a political decision under consideration by the DOJ.

dave, you really need to stop going to partisan sites for your information. No wonder your thinking is so skewed.

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Talking marketing in another thread, do you get why so many rightwing sites have patriot styled names. That's a tip off all by itself.
 
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dave, you really need to stop going to partisan sites for your information. No wonder your thinking is so skewed.

----

Talking marketing in another thread, do you get why so many rightwing sites have patriot styled names. That's a tip off all by itself.
An intellectual discussion of the issues is not partisan but rather when one approaches with an open mind it can be informative to see all sides of an issue. The article is well thought out and presented whether you agree with the conclusions or not.
 
An intellectual discussion of the issues is not partisan but rather when one approaches with an open mind it can be informative to see all sides of an issue. The article is well thought out and presented whether you agree with the conclusions or not.

sigh, sure sure, you are so open minded to start with. You push an agenda, the sites you go and usually cite only support that agenda.

That isn't being an intellectual or open minded.

First thing an intellectual will do is get their facts right if they are worth their salt. I question my own beliefs or what I think, all the time. Use something similar to the scientific process with them in fact.

----

Or logic.

If things be the same then go on with you bad self else adjust they knowledge with the new information.

Not: I only fit in what supports what I already think.
 
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http://www.americanthinker.com/articles/2016/04/emmens_reaem_and_hillary_clinton.html

Great link on the discussion of all the issues being discussed. If it was linked earlier I apologize. Her signing the required forms when leaving office and then failing to comply creates a crime, whether she is charged or not appears to be a political decision under consideration by the DOJ.
Legal minds can disagree as to whether the various mens rea requirements have been met, but I would point out the author of that link does not deny that they exist. That is the key point I have been trying to explain: the various statutes define specific levels of mental culpability that must be proven to find her guilty of those various statutes.

Both her attackers and defenders are flat out wrong to focus solely on this "intent" issue. Intent is only one of the possible forms of mens rea. One the one hand, there are crimes she may have committed that do not require intent. On the other hand, the lowering of the standard in the statute from intent down to knowledge or even gross negligence does not remove the requirement that mental culpability be proven; it simply makes it easier to do so.
 
The banter between Cajun and Goat made me pour myself a glass of Macallan 15.

Ever tried the Fine Oak series? The Macallan (or whoever owns it) is a client of my wife and at at event in NY recently she tried The Macallan 17 Fine Oak. She's never cared for scotch but after having that she insisted I buy a bottle. It's not cheap though.
 
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Legal minds can disagree as to whether the various mens rea requirements have been met, but I would point out the author of that link does not deny that they exist. That is the key point I have been trying to explain: the various statutes define specific levels of mental culpability that must be proven to find her guilty of those various statutes.

Both her attackers and defenders are flat out wrong to focus solely on this "intent" issue. Intent is only one of the possible forms of mens rea. One the one hand, there are crimes she may have committed that do not require intent. On the other hand, the lowering of the standard in the statute from intent down to knowledge or even gross negligence does not remove the requirement that mental culpability be proven; it simply makes it easier to do so.
Give you another 10 years of experience and you will start to understand the reality of reading statutes and applying the law. 100% of new lawyers think they have all the answers until after about 5 years they start to operate in the real world and appreciate the more experienced attorneys. I speak from experience because I have been there and done that. Judge McNagny once told a group of attorneys "all of you are smart but you have no clue how to practice law until the wetness behind the years has evaporated".
 
sigh, sure sure, you are so open minded to start with. You push an agenda, the sites you go and usually cite only support that agenda.

That isn't being an intellectual or open minded.

First thing an intellectual will do is get their facts right if they are worth their salt. I question my own beliefs or what I think, all the time. Use something similar to the scientific process with them in fact.

----

Or logic.

If things be the same then go on with you bad self else adjust they knowledge with the new information.

Not: I only fit in what supports what I already think.
Name one item in the article that is not based on fact. If you would have read in its entirety the article is about legal concepts and the legal profession is large because not all agree but we don't diss attorneys with different opinions just beat them in the courtroom,
 
Give you another 10 years of experience and you will start to understand the reality of reading statutes and applying the law. 100% of new lawyers think they have all the answers until after about 5 years they start to operate in the real world and appreciate the more experienced attorneys. I speak from experience because I have been there and done that. Judge McNagny once told a group of attorneys "all of you are smart but you have no clue how to practice law until the wetness behind the years has evaporated".
This is not inexperience. This is Law 101. Any lawyer who doesn't understand that the very presence of the term "gross negligence" in the statute creates a requirement to prove the mens rea of gross negligence deserves to be disbarred, because said lawyer is incompetent in their own field.
 
Once again Cajun, NO ONE is arguing that intent is required. Mens rea doesn't mean intent. I honestly don't think I've been the least bit unclear about this as I've been explaining it, but if I have, I apologize. All I am saying is that the act itself doesn't automatically prove gross negligence. You can't assume the negligence just from the nature of the act. None of the legal minds you cite disagree with this.
I must disagree once again on the legal minds I referenced agreeing with you that you can't assume negligence from the nature of the act. Several do disagree with you.

I have spent way to much time on this anyway but I have learned a lot about the issue. Having said that:

Ken Cuccinelli former attorney general of Virginia, "here’s the intent to “retain” the classified documents" and "The intent required is only to undertake the action."

Joseph diGenova Former US attorney DC stated in a CSPAN interview that in gross negligence in this case the only intent required is the intent of the act required.

I think we are splitting hairs here.

You just advised me that mens rea does not mean intent and then in this response linked below:

https://indiana.forums.rivals.com/t...handling-of-emails.124188/page-6#post-1644267

You state: "Intent is only one of the possible forms of mens rea."

I'll close with these two quotes from some of the names I provided in earlier post.

The lack of intent line is just a red herring. Prosecution under 18 USC 793 only requires that the information wind up being outside of its proper place of custody. You can argue the intent angle all the live long day but it doesn’t change the fact that the law clearly appears to have been broken

And:

"Too bad these officials — political appointees, no doubt — skipped or failed Criminal Law 101. The government need not prove intent for either espionage or for lying to federal agents"

I'm done...period... I suppose mental culpability now rears its ugly head.;)

I thank you for all the time you put in with me on this issue. Believe it or not I have really enjoyed it. Thank You sir.
 
The lack of intent line is just a red herring. Prosecution under 18 USC 793 only requires that the information wind up being outside of its proper place of custody. You can argue the intent angle all the live long day but it doesn’t change the fact that the law clearly appears to have been broken

And:

"Too bad these officials — political appointees, no doubt — skipped or failed Criminal Law 101. The government need not prove intent for either espionage or for lying to federal agents"
Yay, I woke up early and have something to respond to!

(Went to bed at like 10 pm, and this is what happens when I do that.)

Anyway, the section you quoted that I include here illustrates both what is right and what is wrong in their arguments. It is true that intent is a red herring, if we're talking about 793. 793 does not require intent, as I have repeatedly said. However, it does require gross negligence. The person you quote here is wrong to say it "only requires that the information wind up being outside of its proper place of custody." This is simply incorrect. The statute clearly says that the information must wind up outside of its proper place of custody due to gross negligence. I did not add the term myself. "Gross negligence" is right there in the statute.

There is a very good reason for this. It is quite possible that a government official could behave responsibly and still end up with some classified info sitting somewhere it doesn't belong. Accidents happen, even among people who are taking care to avoid them. Mistakes are made. Congress did not intend to punish honest mistakes, only those that were made due to gross negligence. That is what can be inferred by the inclusion of such language in the statute. If all that is needed is the presence of the info, and negligence does not need be proven, there is no reason for the language to even be in there, and no court will ever interpret a statute to make a clause in the language irrelevant. Courts always assume Congress put those words there for a reason. In the case of language involved various recognized levels of mental culpability, it's always been understood that they describe the necessary mens rea. There is no other meaningful way to interpret it. I will repeat my very blunt claim that any lawyer who honestly believes the government has no need of proving gross negligence should be disbarred, because we're not talking about some debatable nuance in the law here; we're talking about one of the very fundamentals that every L1 student learns on the first day of their first Crim Law class.

I have tried to reason with a stupid analogy (the 100 dead bodies in your yard). Let me offer a more realistic one. Let's say you are a surgeon, and in your state, there is a statute against negligent homicide. If one of your patients dies, the state cannot convict you of negligent homicide without proving you were negligent. This should be common sense. You shouldn't go to prison if you did your very best, and your patient died through no fault of your own. This statute works the same way. Someone who violates this particular part of 793 can't be sent to prison simply for mishandling classified info; the state must also prove that they exhibited gross negligence.

Edit: typos and clarity
 
"Someone who violates this particular part of 793 can't be sent to prison simply for mishandling classified info; the state must also prove that they exhibited gross negligence". This is where some legal scholars disagree. The mere mishandling and improper storage of classified information is a crime. It will be interesting to read the FBI recommendations and how the DOJ handles the whole issue. You have your opinion and others have their that is why we have a plethora of attorneys and prosecutors versus defense attorneys operating within a system. If the law was black and white there would be much less controversies. If I were the defense attorney I would probably be taking your position although time will tell how much merit it deserves. The Top Secret document handling process is an "animal" of its own and once one goes thru the briefing and debriefing process they have a better understanding of what is expected to protect intelligence gathering. As a service person the Provost Marshal would laugh in your face if you claimed a "gross negligence" defense and your court marshal would proceed accordingly if the rules were violated.
 
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Yay, I woke up early and have something to respond to!

(Went to bed at like 10 pm, and this is what happens when I do that.)

Anyway, the section you quoted that I include here illustrates both what is right and what is wrong in their arguments. It is true that intent is a red herring, if we're talking about 793. 793 does not require intent, as I have repeatedly said. However, it does require gross negligence. The person you quote here is wrong to say it "only requires that the information wind up being outside of its proper place of custody." This is simply incorrect. The statute clearly says that the information must wind up outside of its proper place of custody due to gross negligence. I did not add the term myself. "Gross negligence" is right there in the statute.

There is a very good reason for this. It is quite possible that a government official could behave responsibly and still end up with some classified info sitting somewhere it doesn't belong. Accidents happen, even among people who are taking care to avoid them. Mistakes are made. Congress did not intend to punish honest mistakes, only those that were made due to gross negligence. That is what can be inferred by the inclusion of such language in the statute. If all that is needed is the presence of the info, and negligence does not need be proven, there is no reason for the language to even be in there, and no court will ever interpret a statute to make a clause in the language irrelevant. Courts always assume Congress put those words there for a reason. In the case of language involved various recognized levels of mental culpability, it's always been understood that they describe the necessary mens rea. There is no other meaningful way to interpret it. I will repeat my very blunt claim that any lawyer who honestly believes the government has no need of proving gross negligence should be disbarred, because we're not talking about some debatable nuance in the law here; we're talking about one of the very fundamentals that every L1 student learns on the first day of their first Crime Law class.

I have tried to reason with a stupid analogy (the 100 dead bodies in your yard). Let me offer a more realistic one. Let's say you are a surgeon, and in your state, there is a statute against negligent homicide. If one of your patients dies, the state cannot convict you of negligent homicide without proving you were negligent. This should be common sense. You shouldn't go to prison if you did your very best, and your patient died through no fault of your own. This statute works the same way. Someone who violates this particular part of 793 can't be sent to prison simply for mishandling classified info; the state must also prove that they exhibited gross negligence.

Edit: typos and clarity

You are still wrapped around the axel here

First, as a general rule, there i no mens rea when talking about a malum prohibitum crime. Mens rea means a culpable state of mind. To state it another way, it is an intention to break the law. In this crime, and as is the case with most malum prohibitum crimes, there need not be an intention to break the law. There need only to be some kind of intent to do the prohibited act. And in this case, the statute provides that this intent can be established through proof of gross negligence.

I think you are trying to split hairs on a bald head here. Intent is a an element. But that intent can be established in this case, as in many cases, with proof of gross negligence--or more particularly proof of circumstances establishing gross negligence. What we are talking about here is the proof required to meet a prima facie case. Think of a crime of possession of contraband. If the state proves only that the contraband was stuffed in the underwear of the defendant, I think that establishes a prima facie case. Similarly here, proof that confidential info was on Hillary's personal server accompanied with the circumstances that the server was in her exclusive control, and she made no effort to screen for incoming confidential material can meet the prima facie case.

FWIW, I don't think I would be disbarred by making this argument in court.
 
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You are still wrapped around the axel here

First, as a general rule, there i no mens rea when talking about a malum prohibitum crime. Mens rea means a culpable state of mind. To state it another way, it is an intention to break the law. In this crime, and as is the case with most malum prohibitum crimes, there need not be an intention to break the law. There need only to be some kind of intent to do the prohibited act. And in this case, the statute provides that this intent can be established through proof of gross negligence.

I think you are trying to split hairs on a bald head here. Intent is a an element. But that intent can be established in this case, as in many cases, with proof of gross negligence--or more particularly proof of circumstances establishing gross negligence. What we are talking about here is the proof required to meet a prima facie case. Think of a crime of possession of contraband. If the state proves only that the contraband was stuffed in the underwear of the defendant, I think that establishes a prima facie case. Similarly here, proof that confidential info was on Hillary's personal server accompanied with the circumstances that the server was in her exclusive control, and she made no effort to screen for incoming confidential material can meet the prima facie case.

FWIW, I don't think I would be disbarred by making this argument in court.
Your argument is nonsensical.

First, malus prohibitum has nothing to do with mens rea. If the statute provides for a mens rea, there is one. This statute does.

Second, gross negligence means no intent of anything needs be proven. Negligence is the mens rea.

Third, "intent to do the act" is a mens rea.

You are embarrassing yourself, and I can't figure out why. Ultimately you are arriving at almost the same place as me, but you are twisting basic legal concepts into weird shapes in order to disagree with me along the way. Again, not nuances in the law, but foundational concepts.
 
You are embarrassing yourself, and I can't figure out why. Ultimately you are arriving at almost the same place as me, but you are twisting basic legal concepts into weird shapes in order to disagree with me along the way. Again, not nuances in the law, but foundational concepts.

Why do you take EVERYTHING to a personal level?

If you think that makes you seem smart, you are badly mistaken.

You must understand that mens rea for first degree murder is clear and is a vital element for a conviction while there is no mens rea requirement to be convicted of speeding. As a general rule there is no mens rea for malum prohibitum crimes--meaning crimes that require no offense to morality, but instead are simply wrong because a statute says so. The HRC issue is very close to speeding ticket example and a long way from first degree murder. Proof of mens rea in her case is doubtful.

You seem to want to approach law as if there are right and wrong answers and you always know the "right" answer. That isn't law. And as you showed us with your confusion about the "but for" test and proximate cause a while ago, you aren't nearly as smart about the law as you think you are. The "foundational concept" of law that you don't get is that there are very few right and wrongs.
 
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Why do you take EVERYTHING to a personal level?
I don't think I do. I just think you take things personally. But, in this case, I stepped over the line. I apologize.

You must understand that mens rea for first degree murder is clear and is a vital element for a conviction while there is no mens rea requirement to be convicted of speeding.
Yes, as I've tried to explain to several other posters for nearly six pages now.

As a general rule there is no mens rea for malum prohibitum crimes--meaning crimes that require no offense to morality, but instead are simply wrong because a statute says so.
This is incorrect, or at best, misleading. As a general rule, there is no mens rea for strict liability offenses, and strict liability offenses tend to be malum prohibitum. However, even a malum prohibitum offense will have a mens rea if the statute defining the crime includes one, as is the case here.

The HRC issue is very close to speeding ticket example and a long way from first degree murder.
No, it's not. The statute specifies a mens rea. That's the end of the story.

Proof of mens rea in her case is doubtful.
I don't know enough to say, but based on what they've made public, I tend to agree, which is why I don't think she'll be indicted.

You seem to want to approach law as if there are right and wrong answers and you always know the "right" answer. That isn't law.
Sometimes there is a right answer. In this case, it is right to say that Congress included a mens rea in its definition of the crime, and wrong to claim they did not.

And as you showed us with your confusion about the "but for" test and proximate cause a while ago, you aren't nearly as smart about the law as you think you are.
What are you talking about? I think you're confusing me with another poster.
 
However, even a malum prohibitum offense will have a mens rea if the statute defining the crime includes one, as is the case here.

No

Mens rea = subjective intent to break the law

Negligence, in any form and in any degree, is by definition is an objective standard.
 
No, it's not. Mens rea is whatever level of mental culpability is required by common law or statute. Intent is one possibility, but so is negligence.

https://www.law.cornell.edu/wex/mens_rea

No

This isn't the first time judges confuse concepts and it won't be the last. Criminal negligence is NOT mens rea. It is a surrogate. Criminal negligence does not require a guilty mind. Willful and wanton negligent conduct muddies the water, but this statute does not require that. Negligence is always an objective test and mens rea is always a subjective trst.
 
No

This isn't the first time judges confuse concepts and it won't be the last. Criminal negligence is NOT mens rea. It is a surrogate. Criminal negligence does not require a guilty mind. Willful and wanton negligent conduct muddies the water, but this statute does not require that. Negligence is always an objective test and mens rea is always a subjective trst.
You're plain wrong. I provided a link to a reputable website explaining the concept.
 
You're plain wrong. I provided a link to a reputable website explaining the concept.

Don't believe everything on the Internet

I'd love to discuss this with whomever wrote your link. Criminal negligence and mens rea are mutually exclusive concepts. That is apparent in your link. Courts love to create legal fictions. All negligence can ever be is a surrogate for mens rea.
 
Don't believe everything on the Internet

I'd love to discuss this with whomever wrote your link. Criminal negligence and mens rea are mutually exclusive concepts. That is apparent in your link. Courts love create legal fictions. All negligence can ever be is a surrogate for mens rea.
There are four general types of culpability or mens rea*:
1. Purpose or intent
2. Knowledge
3. Recklessness
4. Negligence

It is absolutely wrong for you to suggest that #4 should somehow be removed from the concept of mens rea. I challenge you to provide even one academic source that describes the concept as you do.

But, if you cannot, try this:

So what? Even under the (incorrect) model of culpability you are providing, the statute still requires gross negligence be shown. It is an element of the crime. The statute does not define a strict liability offense. It describes an act that must be proven along with the attendant mental culpability - in this case, gross negligence.

* Source: Dressler, Joshua. Cases and Materials on Criminal Law, 5th Ed.
 
I challenge you to provide even one academic source that describes the concept as you do.

Read your link

Especially the first two sentences. The "criminal sate of mind" is a different animal and includes what I've said all along about an intent to do an act that is wrong by statute but the offender need not understand that it is wrong. Mens rea means knowledge of culpability. A typical violation of a malum prohibitium statute does not require a knowledge of culpability. Your links go to great lengths to establish surrogates for this notion.
 
Read your link

Especially the first two sentences. The "criminal sate of mind" is a different animal and includes what I've said all along about an intent to do an act that is wrong by statute but the offender need not understand that it is wrong. Mens rea means knowledge of culpability. A typical violation of a malum prohibitium statute does not require a knowledge of culpability. Your links go to great lengths to establish surrogates for this notion.
You are still mischaracterizing the concept.

And, even under your mischaracterization, it doesn't matter. "Gross negligence" is an element of the crime in question, and it must be proven. It cannot be ignored.

It sounds like you are confusing "malum prohibitum" and "strict liability."

Mens rea does not mean "knowledge of culpability." It means "guilty mind," and refers to any required state of mental culpability that may or may not include actual knowledge.

No one is arguing that it must be proven that a defendant understand that what he or she is doing is wrong. In fact, it's generally understood that one does not need to prove that. When knowledge is required, it is knowledge of the act, not knowledge of the wrongness. But that's irrelevant to this case, because in this case, knowledge is not required at all.

Judges will not interpret statutes in a way that makes any clause in the statute meaningless. When the statute includes a culpability requirement, the judge cannot simply transform the statute into a strict liability offense. The statute in question requires gross negligence be proven. Period. That's all there is to it.
 
You are still mischaracterizing the concept.

The fact that

Mens rea is a subjective concept and negligence is an objective one is inescapable. The only way to equate the two is the create a fiction. This is what you are doing. Finding links and scholars that indulge this fiction doesn't change the basic point.

I don't know what you intend to show with the rest of your post.
 
The fact that

Mens rea is a subjective concept and negligence is an objective one is inescapable. The only way to equate the two is the create a fiction. This is what you are doing. Finding links and scholars that indulge this fiction doesn't change the basic point.

I don't know what you intend to show with the rest of your post.
We're done on the academic argument. I've provided cites, including to one of the foremost criminal law scholars in the country. Not good enough for you? Fine.

The rest of my post was to point out that your disagreement is irrelevant: no matter how you define it, 793 contains a gross negligence requirement. It's an element of the crime, and therefore must be proven. The violation is not a strict liability one.
 
The rest of my post was to point out that your disagreement is irrelevant: no matter how you define it, 793 contains a gross negligence requirement. It's an element of the crime, and therefore must be proven. The violation is not a strict liability one.

Huh?

I never said the gross negligence element need not be proven. I did say that it can be proven by circumstantial evidence.

As far as the legal scholars are concerned, I have explained what they are doing, that's all.
 
I never said the gross negligence element need not be proven. I did say that it can be proven by circumstantial evidence.
Then why jump in? My argument to the other posters was that gross negligence needed to be proven, and that it couldn't simply be assumed as a consequence of the act. I thought from Day 1 that we agreed on this, and our only disagreement was whether or not negligence was likely to be proven. Now, I'm no longer sure what we disagree on, other than conceptual issues, but it's clearly not the issue that this conversation was originally about, which was that gross negligence is an element of the crime that the prosecution has a burden to prove.
 
Ever tried the Fine Oak series? The Macallan (or whoever owns it) is a client of my wife and at at event in NY recently she tried The Macallan 17 Fine Oak. She's never cared for scotch but after having that she insisted I buy a bottle. It's not cheap though.

No, but you have caught my interest and I will see if I can find it next time I go shopping for booze. Appreciate the tip.
 
"Someone who violates this particular part of 793 can't be sent to prison simply for mishandling classified info; the state must also prove that they exhibited gross negligence". This is where some legal scholars disagree. The mere mishandling and improper storage of classified information is a crime. It will be interesting to read the FBI recommendations and how the DOJ handles the whole issue. You have your opinion and others have their that is why we have a plethora of attorneys and prosecutors versus defense attorneys operating within a system. If the law was black and white there would be much less controversies. If I were the defense attorney I would probably be taking your position although time will tell how much merit it deserves. The Top Secret document handling process is an "animal" of its own and once one goes thru the briefing and debriefing process they have a better understanding of what is expected to protect intelligence gathering. As a service person the Provost Marshal would laugh in your face if you claimed a "gross negligence" defense and your court marshal would proceed accordingly if the rules were violated.
Dave...could you please email me. It's not about your posting or the Cooler etc.
 
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You're plain wrong. I provided a link to a reputable website explaining the concept.
I say this respectfully sir.....You provided a reputable website supporting your position. This discussion here simply between you and CO is an example of two competent lawyers disagreeing on points of law. You continue to insist you are correct and CO is wrong and have stated in this thread essentially that anyone disagreeing with you should be disbarred. And also to the point I have read sources from highly regarded lawyers more to the point of the arguments CO has presented.

Back to your reputable website....I have provided numerous highly regarded lawyers who disagree with you either all or in part. I would argue that these sources are as reputable as yours and it's not that I can't understand what these reference lawyers are pointing out. There is another lawyer I never even referenced who has argued cases in front of the Supreme Court who supports my position as described.

It does look like as CO suggested that your trying to split hairs on a bald head.

Split hairs for me on intent and mental culpability please.

As for proving gross negligence on the statues 793 articles for example.

Did Hillary have a private server? She stated she did.

Where was this server stored?

Was this server secured? Was the material encrypted?

Did Hillary authorize the private server?

Did Hillary pay someone 5k to set up the private server?


Did Hillary use this email personally for personal and government related emails?

Did Hillary tell NBC on a national telecast that she made a mistake in using the private server and that she accepted responsibility?

Does accepting responsibility for it and stating in was a mistake on national TV indicate negligence? She admits it was a mistake.

Doesn't admitting responsibility on national TV point to her understanding that it was wrong and she was negligent?

Did Hillary state she never sent or received classified materials? (Which has been proven false on a large number of occasions and confirmed by the IG and confirmed by a DOD spokesman at a press conference?

Did Hillary delete thousands of what she termed private emails from this server?
(She stated she did)

Has the IG and security analyst determined that there was classified material on her server of which two were classified at the highest ranked security classification?

Has the Dept of Defense spokesman John Kirby at a news conference confirmed that the server contained 18 email chains between her and Obama?

Has the Dept of Defense spokesman John Kirby at a news conference confirmed that the State Department also would not be releasing seven email chains including 37 pages because these emails contain what he called “a category of top secret information" ? (
using Hillarys server on her end and confirmed by DOD)

Was Hillary trained in the handling and storage of Classified materials?

Did Hillary sign documents she understood rules and protocols for the handling, storage and sharing of classified as well as general government emails both domestic and those involving foreign nations which are born classified?

Did Hillary attempt to get rules changed so she could use her Blackberry?

Is it safe to say that in most criminal cases the Judges usually instructs the jury along the lines that knowledge and intent are usually proved by analyzing the totality of the evidence and the reasonable inferences that flow from it.


If the above isn't enough to prove gross negligence or for that matter mental culpability then nothing is. The way you have argued it would create and atmosphere where anyone in critical positions requiring clearances etc could all set up their own servers and mix and match with personal emails and store them on their private insecure servers/pc's and no one could ever be proven of gross negligence.

You earlier argued that the materials could be on someones pc/server by mistake or that they didn't know about. That is not the case in this issue. Hell there is documented classified email chain exchanges involving her and others. Having said that she would probably look the prosecuting attorney in the eyes and tell him someone used her email address, passwords etc and discussed material that only she would have the knowledge about without her knowledge. I would almost bet that you would argue that here.

Isn't the affirmative on the questions I ask sufficient circumstantial evidence? It appears to me her signature on the security documents that she understood the rules and was trained properly is part of a very sold case.

Question: Even if you are totally correct is there enough evidence to prosecute and understanding from your interpretation that the state must prove negligence?

What element is missing to prove gross negligence specifically and remember you stated, "793 does not require intent, as I have repeatedly said" and "Someone who violates this particular part of 793 can't be sent to prison simply for mishandling classified info; the state must also prove that they exhibited gross negligence."

I have a gut feeling now we will be discussing the difference between responsibility and the various levels of negligence in law. More hair splitting.
 
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I say this respectfully sir.....You provided a reputable website supporting your position. This discussion here simply between you and CO is an example of two competent lawyers disagreeing on points of law. You continue to insist you are correct and CO is wrong and have stated in this thread essentially that anyone disagreeing with you should be disbarred. And also to the point I have read sources from highly regarded lawyers more to the point of the arguments CO has presented.

Back to your reputable website....I have provided numerous highly regarded lawyers who disagree with you either all or in part. I would argue that these sources are as reputable as yours and it's not that I can't understand what these reference lawyers are pointing out. There is another lawyer I never even referenced who has argued cases in front of the Supreme Court who supports my position as described.

It does look like as CO suggested that your trying to split hairs on a bald head.

Split hairs for me on intent and mental culpability please.

As for proving gross negligence on the statues 793 articles for example.

Did Hillary have a private server? She stated she did.

Where was this server stored?

Was this server secured? Was the material encrypted?

Did Hillary authorize the private server?

Did Hillary pay someone 5k to set up the private server?


Did Hillary use this email personally for personal and government related emails?

Did Hillary tell NBC on a national telecast that she made a mistake in using the private server and that she accepted responsibility?

Does accepting responsibility for it and stating in was a mistake on national TV indicate negligence? She admits it was a mistake.

Doesn't admitting responsibility on national TV point to her understanding that it was wrong and she was negligent?

Did Hillary state she never sent or received classified materials? (Which has been proven false on a large number of occasions and confirmed by the IG and confirmed by a DOD spokesman at a press conference?

Did Hillary delete thousands of what she termed private emails from this server?
(She stated she did)

Has the IG and security analyst determined that there was classified material on her server of which two were classified at the highest ranked security classification?

Has the Dept of Defense spokesman John Kirby at a news conference confirmed that the server contained 18 email chains between her and Obama?

Has the Dept of Defense spokesman John Kirby at a news conference confirmed that the State Department also would not be releasing seven email chains including 37 pages because these emails contain what he called “a category of top secret information" ? (
using Hillarys server on her end and confirmed by DOD)

Was Hillary trained in the handling and storage of Classified materials?

Did Hillary sign documents she understood rules and protocols for the handling, storage and sharing of classified as well as general government emails both domestic and those involving foreign nations which are born classified?

Did Hillary attempt to get rules changed so she could use her Blackberry?

Is it safe to say that in most criminal cases the Judges usually instructs the jury along the lines that knowledge and intent are usually proved by analyzing the totality of the evidence and the reasonable inferences that flow from it.


If the above isn't enough to prove gross negligence or for that matter mental culpability then nothing is. The way you have argued it would create and atmosphere where anyone in critical positions requiring clearances etc could all set up their own servers and mix and match with personal emails and store them on their private insecure servers/pc's and no one could ever be proven of gross negligence.

You earlier argued that the materials could be on someones pc/server by mistake or that they didn't know about. That is not the case in this issue. Hell there is documented classified email chain exchanges involving her and others. Having said that she would probably look the prosecuting attorney in the eyes and tell him someone used her email address, passwords etc and discussed material that only she would have the knowledge about without her knowledge. I would almost bet that you would argue that here.

Isn't the affirmative on the questions I ask sufficient circumstantial evidence? It appears to me her signature on the security documents that she understood the rules and was trained properly is part of a very sold case.

Question: Even if you are totally correct is there enough evidence to prosecute and understanding from your interpretation that the state must prove negligence?

What element is missing to prove gross negligence specifically and remember you stated, "793 does not require intent, as I have repeatedly said" and "Someone who violates this particular part of 793 can't be sent to prison simply for mishandling classified info; the state must also prove that they exhibited gross negligence."

I have a gut feeling now we will be discussing the difference between responsibility and the various levels of negligence in law. More hair splitting.
Whoa, whoa, whoa. Cajun, you're making this way too...I dunno what to call it, but just stop. I'm not trying to be short, but I'm going to be blunt. Here is a list of what I am NOT arguing:
I am not arguing that Hillary was not grossly negligent.
I am not arguing that her gross negligence cannot be proven.
I am not arguing that any kind of intent is required for anything.
I am not arguing what constitutes sufficient circumstantial evidence.
I am not arguing Hillary is innocent.


I really don't think I'm being unclear, but you simply can't stay on topic. Again, if it's because I'm a sloppy writer, I apologize, but I am arguing one and only one thing:
Gross negligence is an element of the crime that a prosecutor would need to prove in order to find her guilty. He can't simply ask the jury to assume the negligence on the basis of the act. If a judge allowed that, said judge would essentially be writing the language about gross negligence clean out of the statute. Because the language is in the statute, it is part of the crime that needs to be proven.

This is it. This is all I am arguing, and all I have been arguing with you.

When a crime has multiple elements, a prosecutor must prove all of them. Period. This is not something different lawyers have reasonable disagreements about. This is like arguing whether or not there is gravity. If a crime has 10 elements, and the prosecutor only proves 9 of them, the defendant walks. Every. Single. Time.
 
Whoa, whoa, whoa. Cajun, you're making this way too...I dunno what to call it, but just stop. I'm not trying to be short, but I'm going to be blunt. Here is a list of what I am NOT arguing:
I am not arguing that Hillary was not grossly negligent.
I am not arguing that her gross negligence cannot be proven.
I am not arguing that any kind of intent is required for anything.
I am not arguing what constitutes sufficient circumstantial evidence.
I am not arguing Hillary is innocent.


I really don't think I'm being unclear, but you simply can't stay on topic. Again, if it's because I'm a sloppy writer, I apologize, but I am arguing one and only one thing:
Gross negligence is an element of the crime that a prosecutor would need to prove in order to find her guilty. He can't simply ask the jury to assume the negligence on the basis of the act. If a judge allowed that, said judge would essentially be writing the language about gross negligence clean out of the statute. Because the language is in the statute, it is part of the crime that needs to be proven.

This is it. This is all I am arguing, and all I have been arguing with you.

When a crime has multiple elements, a prosecutor must prove all of them. Period. This is not something different lawyers have reasonable disagreements about. This is like arguing whether or not there is gravity. If a crime has 10 elements, and the prosecutor only proves 9 of them, the defendant walks. Every. Single. Time.
Fine Goat. I will acknowledge I have been redundant in my post.

Your five bold points is almost a contradiction to earlier statements you made in this long thread. You indicated you didn't feel she would be indicted and that you doubted she is criminally culpable for any of these supposed national security violations.

"supposed national security violations".........How could you possibly think supposed? For example if you answered all the questions I posed in the previous post honestly it certainly points to numerous and serious security violations of Fed statutes and protocols. I understand her presumed innocence and all of this and that proven is the key word. Someone most certainly violated security protocols and statutes regarding same. Someone did

I wasn't trying to irritate you by any means. I think you meant to be very clear and perhaps to another lawyer you might well have been. You have to talk down to us layman. But on second thought some of our other Cooler attorneys feel much differently than you and some should be considered highly qualified.

If you don't want to respond further no problem.

You advise that the material on her computer could be the evidence but it does nothing to prove the required mental culpability. Your five statements in bold indicate and open mind and imply that you feel she might be grossly negligent and it could be proven, that intent might not be required, and finally Hillary just might be guilty. Or at a minimum you suggested it. Much of this we argued.

I think it simply boils down to this comment you used, "the material on her computer could be the evidence but it does nothing to prove the required mental culpability". I reviewed several legal sites and the follow definition was the same in all of them: "Culpable mental state" means intentionally, knowingly, recklessly or with criminal negligence. It goes on to describe each of those parts.

No argument sir but suppose you were the prosecutor in her case if indicted. Specifically how would you prove she was criminally negligent?? Assuming this definition is correct: "Criminal negligence" means, with respect to a result or to a circumstance described by a statute defining an offense, that a person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

I don't think it difficult proving she is in fact a reasonable person and that she was trained on the protocols and statutes and she signed documents stating she was and she told the media she accepted the responsibility. And frankly how could anyone do the job without it involving security issues.

Knowingly also points out that it does not require any knowledge of the unlawfulness of the act or omission.

Oh well sir don't worry about a response. I to am burned out. I did enjoy our conversations very much. Thank you sir.
 
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When a crime has multiple elements, a prosecutor must prove all of them. Period. This is not something different lawyers have reasonable disagreements about. This is like arguing whether or not there is gravity. If a crime has 10 elements, and the prosecutor only proves 9 of them, the defendant walks. Every. Single. Time.

Goat . . . . .

Cajun argues circumstantial evidence. You keep acting as though the jury will not be given the circumstantial evidence instruction. If the prosecution has direct evidence of 9 elements and only 9 elements, the 10th could be proven by the circumstances in evidence.

Maybe it's a sign of the times about legal education; but you keep wanting to look at this case, and the required mens rea or mental state, as if it were an answer to a multiple choice test.
 
Fine Goat. I will acknowledge I have been redundant in my post.

Your five bold points is almost a contradiction to earlier statements you made in this long thread. You indicated you didn't feel she would be indicted and that you doubted she is criminally culpable for any of these supposed national security violations.
It's not a contradiction. I have indicated that, based on the leaks, I think it unlikely that the AG will be able to make a case. That doesn't mean it's impossible. I just doubt it's going to happen.

"supposed national security violations".........How could you possibly think supposed? For example if you answered all the questions I posed in the previous post honestly it certainly points to numerous and serious security violations of Fed statutes and protocols. I understand her presumed innocence and all of this and that proven is the key word. Someone most certainly violated security protocols and statutes regarding same. Someone did
This right here is where you go wrong. The mere fact that the information was where it wasn't supposed to be is not enough to prove someone broke the law. The government must also show that someone exhibited gross negligence. One element of the crime does not in and of itself prove the other.

I wasn't trying to irritate you by any means. I think you meant to be very clear and perhaps to another lawyer you might well have been. You have to talk down to us layman. But on second thought some of our other Cooler attorneys feel much differently than you and some should be considered highly qualified.

If you don't want to respond further no problem.

You advise that the material on her computer could be the evidence but it does nothing to prove the required mental culpability. Your five statements in bold indicate and open mind and imply that you feel she might be grossly negligent and it could be proven, that intent might not be required, and finally Hillary just might be guilty. Or at a minimum you suggested it. Much of this we argued.

I think it simply boils down to this comment you used, "the material on her computer could be the evidence but it does nothing to prove the required mental culpability". I reviewed several legal sites and the follow definition was the same in all of them: "Culpable mental state" means intentionally, knowingly, recklessly or with criminal negligence. It goes on to describe each of those parts.

No argument sir but suppose you were the prosecutor in her case if indicted. Specifically how would you prove she was criminally negligent?? Assuming this definition is correct: "Criminal negligence" means, with respect to a result or to a circumstance described by a statute defining an offense, that a person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

I have suggested some ways to prove negligence in my other posts. For example, if the government has evidence that she failed to follow protocols that she knew were designed to prevent this very thing. A lot of the emails released actually show her staff going to some lengths to avoid sharing classified information over email, which is a bit of evidence that points in her favor on this particular issue.

I don't think it difficult proving she is in fact a reasonable person and that she was trained on the protocols and statutes and she signed documents stating she was and she told the media she accepted the responsibility. And frankly how could anyone do the job without it involving security issues.
Again, the reasonable person is a legal fiction. The jury would be asked to imagine how a hypothetical reasonable person would behave in the exact same circumstances. Whether or not Hillary herself is reasonable is irrelevant (unless the reason she is unreasonable is because she is mentally incompetent, which raises a possible affirmative defense, but probably ends her political aspirations).

Knowingly also points out that it does not require any knowledge of the unlawfulness of the act or omission.

I have said this exact same thing numerous times. It's also not really important, because knowledge isn't required for this particular offense, anyway. Gross negligence is actually a lower burden of proof than knowledge.

Oh well sir don't worry about a response. I to am burned out. I did enjoy our conversations very much. Thank you sir.
 
Goat . . . . .

Cajun argues circumstantial evidence. You keep acting as though the jury will not be given the circumstantial evidence instruction. If the prosecution has direct evidence of 9 elements and only 9 elements, the 10th could be proven by the circumstances in evidence.

Maybe it's a sign of the times about legal education; but you keep wanting to look at this case, and the required mens rea or mental state, as if it were an answer to a multiple choice test.
The way I read Cajun is exactly as I read Ladoga, and it seems you are trying to argue the same thing. It's not about circumstantial evidence. I never said anything about circumstantial evidence. It's about whether or not the mere fact of the act is enough to also assume negligence. And that simply can't be. To allow the statute to be interpreted that way would make the language on gross negligence entirely meaningless, and it's a long-standing precept that courts won't do that unless absolutely necessary. Therefore, there must be some other evidence (circumstantial or not!) that supports an accusation of gross negligence.
 
I posted this link a while back. Can't find it now so here it is again.

http://freebeacon.com/wp-content/uploads/2015/11/HRC-SCI-NDA1.pdf

It is the link to the HRC signed SF 312. It bears her name and signature. Read it. Multiply the circumstantial evidence by 2200 classified documents on her server factoring in 22 Top Secret documents so sensitive that some FBI agents had to have their security clearances upgraded to even deal with the investigation. Does that volume amount to gross negligence? I'd be amazed if you admit it does, but thousands of repititions in the face of her own sworn form should constitute gross negligence.
 
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