Hillary Clinton

FBI Head Says Prosecuting Hillary Clinton for 'Gross Negligence' Would Be Unfair

James Comey says justice demands proof of criminal intent, even when the law doesn't.

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C-Span

Yesterday FBI Director James Comey clarified his rationale for concluding that "no reasonable prosecutor" would bring a case against Hillary Clinton for the mishandling of classified material that resulted from her decision to use private email servers as secretary of state. Testifying before the House Oversight and Government Reform Committee, Comey acknowledged that a conviction under 18 USC 793, which makes it a felony to permit the removal of classified information "from its proper place of custody," does not require proof that the defendant knew he was breaking the law. It is enough to show he allowed removal of the information "through gross negligence," meaning that (as Comey put it) the government need only prove he was "really, really careless beyond a reasonable doubt." Comey said he understands why people were puzzled by his apparent neglect of that provision. "I get that folks see disconnections, especially when they see a statute that says 'gross negligence,'" he said. "'Well, the director just said she was extremely careless. So how is that not prosecutable?'"

The short answer: It is prosecutable, but Comey believes it should not be prosecuted because people should not be charged with a crime when they may not have realized they were breaking the law. "In our system of law, there's a thing called mens rea," he said. "We don't want to put people in jail unless we prove that they knew they were doing something they shouldn't do. That is the characteristic of all the prosecutions involving mishandling of classified information." He said he was able to locate just one case prosecuted under the "gross negligence" provision of 18 USC 793 in the century since the law was passed, which shows federal prosecutors "have grave concerns about whether it's appropriate to prosecute somebody for gross negligence."

Comey conceded that an FBI employee who used a private, unsecured email server to tansmit classified information would face serious consequences, possibly including dismissal and permanent loss of his security clearance. But he denied that he cut Clinton slack because of her political position. He said "the recommendation was made the way you would want it to be, by people who didn't give a hoot about politics, who cared about what are the facts, what is the law, and how similar people, all people, have been treated in the past." Comey therefore rejected the idea that Clinton benefited from a double standard. "You know what would be a double standard?" he said. "If she were prosecuted for gross negligence."

Because he believes prosecutions based on gross negligence are inappropriate, Comey said, he did not see his task as determining whether Clinton's "extremely careless…handling of very sensitive, highly classified information," as he described it on Tuesday, fit that standard. But he left little doubt that it did. "My term 'extremely careless' is trying to be kind of an ordinary person," he explained yesterday. "That's a common-sense way of describing it: It sure looks real careless to me….She should have known not to send classified information….That's the definition of negligent. I think she was extremely careless. I think she was negligent. That, I could establish. What we can't establish is that she acted with the necessary criminal intent."

According to Comey, proof of criminal intent is necessary not because the statute requires it but because justice does. "I see evidence of great carelessness, but I do not see evidence that is sufficient to establish that Secretary Clinton or those with whom she was corresponding both talked about classified information on e-mail and knew when they did it they were doing something that was against the law," he said. "The protection we have as Americans is that the government in general, and in that statute in particular, has to prove before [it] can prosecute any of us that we did this thing that's forbidden by the law, and when we did it, we knew we were doing something that was unlawful. We don't have to know the code number, but [the government must show] that we knew we were doing something that was unlawful. That's the protection we have, one I have worked for very hard. When I was in the private sector, I did a lot of work with the Chamber of Commerce to stop the criminalization of negligence in the United States."

It is heartening to hear the head of the FBI, who also has served as a U.S. attorney and deputy attorney general, defend this principle, especially at a time when his colleagues at the Justice Department are fighting mens rea reform on the grounds that it would make convictions harder to obtain. The principle is worth defending, even if it benefits Hillary Clinton.

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  1. Hey, the director the FBI admitted that Mens rea should at least factor into prosecutions, so I guess that counts as a libertarian moment.

    1. Except he apparently is, as a matter of law, wrong about it in this case.

      1. That and it’s only selectively applied to powerful people and is not afforded to us peons.

    2. only if you are one of the political elites.

      1. And happen to have enough leverage on the director of the FBI, apparently.

    3. I guess that counts as a libertarian moment.

      Except for the goobers who falsely object!
      Careless, JWW, johnyreb, and suicidy (so far). Never mess with those eager to be brainwashed by their own self-appointed political elite.

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  2. I still don’t see how this could be considered negligence. How long have these people been handling classified information? Did they never receive training on how to handle it? If they did then this wasn’t negligence.

    1. Yes, anyone with security clearance is required to undergo annual training on the proper handling of classified information. Also they have to sign that they took the training and they understand the consequences of mishandling such information. As I understand it she only signed it her first year in the State Dept. even through she is suppose to sign it after taking training each year.

      1. I trust Trump will mercilessly hammer on such facts during the debates.

        Repeatedly put H on the spot “explaining” her attitude to (and about) the American People.

        1. Hillary has NEVER dealt with the likes of Trump. I’m hoping that he can enrage her enough that she finally loses her shit in public and shows us the REAL Hillary.

          1. I cannot wait till the first debate between these two. I predict it turns into an episode of Jerry Springer five minutes in.

            1. I am eager to see them both make public asses of themselves. Gary could win the debates even if he never appears!

    2. Part of the standard proggie defense for months has been, “Well, even if it was wrong, she didn’t mean to do it!” Except the law actually allows for the punishment of gross negligence in this case; Comey’s basically giving the “FYTW” defense for why they didn’t pursue charges.

      But yeah, deliberately setting up a server that State never authorized for any use, much less classified information, and using it illegally for four years is clearly not a negligent act.

      1. she gave classified materials to those w/o the proper security clearance to receive them

      2. It’s not negligent, it was done with malicious intent.

      3. As a general rule, anyone who uses “prog” or “proggie” is a hopeless captive of tribal politics.

        1. Says the epitome of a prog.

    3. Accidentally setting up a private server to avoid any oversight?

      1. Don’t forget accidentally withholding emails from that should have been given to State and the big one, accidentally destroying the server when it was being sought as evidence.

          1. I knew what that link was going to be the moment I read it.

        1. Comey said he wasn’t looking at other violations of law, such as violating the Public Information Act, making false statements, under oath, to Congress or avoiding FOIA requests – all of which she plainly did.
          The exact point of the training these employees get on handling of classified materials is so that they can’t claim to be unaware that what they do is unlawful. Add to that, all the lies she has told, in public, to avoid being found to have done what she plainly did, which shows a consciousnesses of guilt
          And he let her walk, on all of it.
          He wasn’t “trying to be fair”, he was trying to avoid charging her with anything, and he succeeded.
          I have doubted all the claims about this guy being a “straight shooter” since the results of the IRS “investigation” came out, but here is more proof, it is absolute bullshit.

    4. I heard that as part of his testimony Comey said that Clinton wasn’t “sophisticated” enough to understand proper procedures for classified information.

      She’s too stupid, so let’s make her president.

      1. I the troll heard it then it must be true.
        Like hearing Obama is a Kenyan?

  3. He said he was able to locate just one case prosecuted under the “gross negligence” provision of 18 USC 793 in the century since the law was passed, which shows federal prosecutors “have grave concerns about whether it’s appropriate to prosecute somebody for gross negligence.”

    No, it does not show that. Rarity of prosecution does not necessarily have anything to do with any such grave concerns.

    1. Would he apply the same ‘rarity’ standard to a Presidential assassination?

      There’s your answer.

    2. I think this shows that the only concern prosecutors, federal or otherwise, have is with their careers.

    3. Did Petraeus show a criminal mind when he showed his personal calendar to his biographer? He was prosecuted.

      1. Did Petraeus show a criminal mind when he showed his personal calendar to his biographer? He was prosecuted.

        He accepted a plea agreement.

        1. “He accepted a plea agreement”… to avoid the prosecution that was about to happen.
          Something HiLIARy didn’t have to do because she wasn’t going to be.

          1. Mens rea as described here.. And we both agree that Long Woodchippers is wrong.
            So unless you apply a double standard that means Long Woodchippers intentionally lied, right?.

    4. If you “heard” it then it must be true! Thanks for sharing.

    5. No, it does not show that. Rarity of prosecution does not necessarily have anything to do with any such grave concerns.

      Why do you assume that it hasn’t happened frequently?

  4. That’s a common-sense way of describing it: It sure looks real careless to me….She should have known not to send classified information….That’s the definition of negligent. I think she was extremely careless. I think she was negligent. That, I could establish.

    Sounds good so far…

    What we can’t establish is that she acted with the necessary criminal intent.

    lolwhut?!?

  5. Yeah,sure.Try depositing cash from your business in the wrong amounts and see if intent matters.

    1. This.

      Or, as an even lesser example, speeding.

      1. Or making copyrighted material available online.

        The FBI has fucked up people’s lives for sharing goddamned movies over the Internet, but top secret data, go ahead share away…

        1. accidentally sharing movies?

          1. people who dont know how torrents or torrent clients work could very easily upload content they thoight they had merely downloaded.

    2. Try driving with a broken taillight.

    3. Or depositing cash in the wrong increments.

      1. Always fun to see so many retards all lined up in a row. high-fiving their own stupidity of what is taught in high school. The common law. Ignorance of legal precedent and the effect of court rulings,
        Nattering nabobs of negativity.

  6. It’s a shame decisions not to prosecute can’t be considered case law. I would love to see the FBI and Justice Department stuck having to live with this as precedent.

    1. Saw a story yesterday where lawyers defending people punished for violating security law were planning to use the Hillary defense on appeal….

      1. Let the lawsuits begin.

    2. You know these assholes always exempt themselves from what they inflict on the rest of us

    3. It’s a shame decisions not to prosecute can’t be considered case law

      mens rea, tracing to the common law, is superiot to case law.

      I would love to see the FBI and Justice Department stuck having to live with this as precedent.

      YOU are stuck with mens rea as explained here by Sullum.

      1. There are plenty of criminal acts, that are prosecutable, that lack mens rea and are done so because of neglect, without criminal intent. The most prominent being negligent homicide, or manslaughter, where the act may not have had the intent of causing death, or great bodily harm, but was done without regard for the consequences – as was this, which the Congress, clearly said, was all that was needed.
        This seems to be more of a reverse case law. Case law being where some idiot judge decides that what the legislature intended and plainly stated can be undone, because some equally idiotic lawyer makes an argument that the idiot judge wants to accept. (It seems that entering a courtroom, or seating ones self behind the “bench”, removes all ability to retain logic or common sense.)
        In this “case” it is the prosecutor(s) that have decided that the plain language if the law, as enacted by the ones so entrusted, is to be ignored.
        It is a travesty that this system can have the word “legal” attached to it.

        1. There are plenty of criminal acts, that are prosecutable, that lack mens rea and are done so because of neglect, without criminal intent.

          Only if there;s been a SCOTUS ruling to overrule the common law, which is how it works

          This seems to be more of a reverse case law.

          You really are confused.

          Case law being where some idiot judge decides that what the legislature intended and plainly stated can be undone,

          You also don’t know what case law means, as a precedent, but the precedent here was established several hundred years ago, The common law.

          entering a courtroom, or seating ones self behind the “bench”, removes all ability to retain logic or common sense.)

          Does that make you a judge?

          In this “case” it is the prosecutor(s) that have decided that the plain language if the law, as enacted by the ones so entrusted, is to be ignored.

          That’s not what happened. Are you Trey Gowdy posting under an alias?

          It is a travesty that this system can have the word “legal” attached to it.

          Learn about the common law. And what Comey actually said. Then you might just know who committed a travesty.

          Are you one of those who accuses judges of being idiots when you don’t understand a ruling?
          In this case, Comey was a Deputy Attorney General appointed by Bush2.

  7. That’s swell and all, but cmon, she knew what she was doing.

    Also, I have the strong suspicion that the FBI will consider mens rea in precisely one case, and immediately go back to ignoring it in the thousands of other cases it is pursuing.

    1. Read Sullum again.
      Plus, what is your basis for such a bizarre claim?

  8. According to Comey, proof of criminal intent is necessary not because the statute requires it but because justice does.

    It would be nice to think he means something more than just this one particular statute in this one particular case but I suspect it’s more like how the most ardent supporter of due process is a cop but only when it’s another cop under investigation. Has he by any chance got any personal records of declining to prosecute under this mens rea standard or just the general vague hand-waving about how “we have a history of doing that sort of thing”?

    1. “According to Comey, proof of criminal intent is necessary not because the statute requires it but because justice does.”

      Comey re-writes the law!

      Why not enforce it as written?

      Also, mens rea was established.

      1. Also, mens rea was established.Are you also a Birther?

        1. She received training, and signed a form that indicated she understood what the legal ramifications to mishandling of classified information would be. Do you think someone forged that signature?
          She repeatedly claimed that there was no classified information, when it was shown that there, in fact, was. Isn’t lying about having committed an offense, especially after it had been shown to have occurred, considered consciousness of guilt? You can’t be conscious of your guilt, unless you know there is something to be guilty of.
          The idea that she could go through a term as Secretary of State and not send, or receive, classified information, on the only e-mail server she used, shows, in addition, that she was wholly incompetent at her job.

          1. None of that has anything to do with mens rea

            She repeatedly claimed that there was no classified information, when it was shown that there, in fact, was

            That’s where your type betrays its tribal bias. If she was wrong it HAD to be a lie!! Do you also deny the presumption of innocence REQUIRED in the American legal system.?

            in fact, was. Isn’t lying about having committed an offense, especially after it had been shown to have occurred, considered consciousness of guilt?

            If there had been a proven lie, which there wasn’t..Even there was a proven lie, you’d have to prove it was a CRIMINAL intent.

            that she was wholly incompetent at her job.

            Which is what Comey went great lengths to show, thus negating your comment entirely.

    2. Has he by any chance got any personal records of declining to prosecute under this mens rea standard or just the general vague hand-waving about how “we have a history of doing that sort of thing”?

      Umm, mens rea has been a key part of the common law even hundreds of years before our founding. But tribal hatred runs strong these days.

      1. And strict liability has been a key part of the statutory law for quite some time, too. There is no mens rea requirement for the mishandling of classified information. The only tribal behavior is refusal to apply the black letter of the law to someone who’s heavily connected to a particular tribe.

        1. Mens rea, by definition, applies to all of criminal law unless a Supreme Court ruling nullifies it, case be case. That’s how the common law has worked for 800 years.

          In which SCOTUS ruling was strict liability established here?

          The only tribal behavior is refusal to apply the black letter of the law to someone who’s heavily connected to a particular tribe.

          That’s backwards if no crime has been established.
          It’s also tribal to conduct partisan witch hunts, and make judgments heavily connected to one’s opposing partisan tribe.

          Common law trumps statutes, just as Suptrme Court rulings do. In this case, Hillary’s lawyer would seek dismissal on the grounds of mens rea and win it. If there was criminal intent there would also be a documented lie, which also has not been done.

          1. What more “documentation” do you need, than videotaped recordings of her claims that she didn’t send, or receive, the types if information that was, reported to exist.
            If she, truly believed she had done no wrong, she would have said so, in so many words: “I didn’t know that having classified information on my, personal, server, was against the law.”
            She never made that claim.

            1. What more “documentation” do you need, than videotaped recordings of her claims that she didn’t send, or receive, the types if information that was, reported to exist

              Are you serious? That doesn’t come close to showing a lie, let alone beyond reasonable doubt.. Your partisan blinders seem to be blocking all the light.

              If she, truly believed she had done no wrong, she would have said so, in so many words: “I didn’t know that having classified information on my, personal, server, was against the law.”

              Now you’re just being silly. If she believed she did nothing wrong, she’d say … ummmm … “I did nothing wrong

              She never made that claim.

              Do you know what a strawman fallacy is?

            2. “In which SCOTUS ruling was strict liability established here?”

              What more “documentation” do you need

              Where’s the ruling you claim?

  9. “I do not see evidence that is sufficient to establish that Secretary Clinton or those with whom she was corresponding both talked about classified information on e-mail and knew when they did it they were doing something that was against the law,” he said.

    “There is none so blind as he who will not see.”

    Bullshit.

    1. That sure is a nice legalistic way of saying that Hillary and her people are incompetent dumbasses, isn’t it?

      1. “Madame Secretary, would you name the branches of the federal government? Yes, now. We’ll wait a minute while you think about it.”

      2. That sure is a nice legalistic way of saying that Hillary and her people are incompetent dumbasses, isn’t it?

        That seems to have been his clear intent, to any non-judgmental observer.

  10. Hillary’s stream of “clarifications” about her email are a master class in passblocking.

    You don’t have to stop your man outright; you just have to deflect him long enough to get the pass away.

    1. What a great example!

  11. When I was in the private sector, I did a lot of work with the Chamber of Commerce to stop the criminalization of negligence in the United States.

    This is why former President Clinton felt safe telling Lynch to put this off on Comey to make the determination. He had an out. But this will be the first and last time anyone in the Department of Justice speaks of mens rea in a positive light.

    1. But this will be the first and last time anyone in the Department of Justice speaks of mens rea in a positive light

      Why?
      tt’s common law, with a history of 900 years. Do you not understand the common law?

  12. For some reason I don’t think the “unfair” standard applies to anyone who isn’t Hillary Clinton.

    1. For some reason I don’t think the “unfair” standard applies to anyone who isn’t Hillary Clinton.

      For all 900 years of the common law?

  13. Except to assert that she didn’t know she was breaking the law beggars belief.

    They TELL you explicity that classified info cannot ever be on an unsecured network. The lowest government drone is told that. People who don’t even have access to classified information are told that. You are made to sign forms indicating that you have been informed.

    Comey is lying to the public, and Congress, and he has destroyed his integrity forever. He is a mendacious crony. Or he was threatened. Or promised a reward.

    1. Or all of the above. And, he should watch his back and not assume they’ll make good on the deal.

    2. Except to assert that she didn’t know she was breaking the law beggars belief.

      It was interesting to watch Comey squirm as he chose his words on H’s “lack of sophistication” about classified.

      One of the Republicans should have asked “Director, are you saying Mrs. Clinton is *retarded*?”

      1. And then he said they didn’t try to check to see if she was lying.

        Just imagine, a crime has been committed, the person responsible is known, and law enforcement takes negligence as an excuse for a strict liability crime without even trying to determine if it was actual negligence!

    3. They TELL you explicity that classified info cannot ever be on an unsecured network

      I think his explanation amounted to Clinton not being knowledgeable enough about how email works to know this is what happened.

      1. Yet somehow she’s knowledgeable enough about how the nuclear triad works to be president.

        1. “I push da button!” – Plucky Duck or future president

        2. Why do you hate women?

    4. Exactly, anybody who has a clearance gets training. However, its worse with Hillary cause her office was in a goddamn SCIF. A fucking SCIF for christ’s sake. Handling classified information is an everyday thing is a SCIF.

    5. Comey is lying to the public, and Congress, and he has destroyed his integrity forever. He is a mendacious crony. Or he was threatened. Or promised a reward.

      Or he knows the common law better than an enraged partisan blowhard in an online forum.
      Which shall it be?

      1. Easily, the former.
        Only partisan hacks accept his explanation, falling back on “common law” lacks common sense.

        1. Only partisan hacks accept his explanation, falling back on “common law” lacks common sense

          OMG! Now you’re also plug-ugly ignorant of what the common law even is … for only 800 years now! The common law has the same status as a Supreme Court ruling, as a binding precedent. So your hackery is now proven beyond a reasonable doubt.

          That’s why Jefferson merely gave a few examples of unalienable rights in the Declaration instead if listing all that then existed. Likewise, the Ninth Amendment never lists ANY of the rights which states CANNOT deny, in the powers reserved to them in the Tenth. Both largely because of the common law …about which you know absolutely nothing.

          You do know that Jefferson did not invent the concept of natural rights, eh?

  14. “As a member of law enforcement, your job is to enforce the laws as written. The job of finding ‘justice’ as you mention belongs to a judge and a jury. Not you.”

    I would have paid fiat currency to see someone tell Comey this on TV.

    1. The Republicans are not known as “The Stupid Party” for nothing.

      1. Especially Gowdy here. And a liar,

    2. I would have paid fiat currency to see someone tell Comey this on TV.

      Because you’re either confused or ignorant. Sullum could have added some detail. The reason no responsible prosecutor would attempt it is because it’s fucking stupid to file charges where the judge is 99% certain the throw it out on mens rea, which is what the defense could easily show. Mens rea has the status of a Supreme Court ruling on a matter of fundamental rights .. which has been true for only 8 centuries of common law.

      1. First of all, there is no mens rea requirement for strict liability offenses. Your lack of intent to speed will not get you out of a speeding ticket, and your lack of intent to mishandle classified information will not get you out of a charge for that offense. Unless you’re a Clinton, apparently.

        Also, mens rea is not about the judge and jury being clairvoyant. If you take actions, including asking questions and making statements, that indicate you have a propensity to violate the law, then that is considered demonstration of intent, your failure to literally say “I want to break the law” notwithstanding.

        You can’t get much more blatant than “strip the classification headers and send it unsecured anyway” which is what Clinton instructed people to do. That leaves no reasonable doubt as to her intent. Which still doesn’t change the fact that intent is not necessary.

        1. .. there is no mens rea requirement for strict liability offenses.

          You’re mistaken here, as elsewhere on the page. Mens rea applies to ALL criminal law, by definition, unless overruled by the Supreme Court, for the last 800 years or so.

          Your lack of intent to speed will not get you out of a speeding ticket, and your lack of intent to mishandle classified information will not get you out of a charge for that offense.

          Unless SCOTUS has ruled on speeding tickets. I can’t imagine anyone crazy enough to appeal it to SCOTUS, can you?

          Unless you’re a Clinton, apparently.

          Try to control your tribal judgments.

          .. f you take actions, including asking questions and making statements, that indicate you have a propensity to violate the law, then that is considered demonstration of intent, your failure to literally say “I want to break the law” notwithstanding.

          Hasn’t happened here. Your partisanship again.

          You can’t get much more blatant than “strip the classification headers and send it unsecured anyway” which is what Clinton instructed people to do.

          Claims on partisan websites are not admissible.

          Which still doesn’t change the fact that intent is not necessary.

          So Gowdy lied about it being claimed because he’s afraid of being correct?

          1. Claims by a clearly partisan defender-of-criminals are what is not admissible.
            You join Comey on that front.

            1. Keep SCREAMING your total ignorance to the world. While I continue laughing.

              Since you claim Jacob Sullum lied about mens rea, do you have anything more substantive than, “I refuse to believe it?”

              Do you also claim that Jacob and I were born in Kenya … unless you see a long-form birth certificate?

  15. Fuck you Jimmy.

    https://www.facebook.com/ libertymaniacsstore/posts/10154216481693082

    and fuck you too Reason. Had to make a break there

    1. Tiny url is your friend

      http://tinyurl.com

      1. Or you can use an HTML link embed like this. Unlimited length for the underlying URL.

  16. Well Mr. Coney, that’s a nice idea you’ve got there.

    And if what you say is true I NEVER EVER want to hear a law enforcement office or prosecutor say ever again that “ignorance of the law is no excuse” because you said yourself that we must MUST take into account the alleged offenders intent.

    It’s either that or there are two different levels of Justice, one hard to prove one for the powerful and one easy to prove one for the little people.

    1. And if what you say is true I NEVER EVER want to hear a law enforcement office or prosecutor say ever again that “ignorance of the law is no excuse” because you said yourself that we must MUST take into account the alleged offenders intent.

      ignorance of the law has nothing at all to do with criminal intent.

  17. “In our system of law, there’s a thing called mens rea,” he said.

    Yeah, sure there is….I think his full statement was something similar to: mens rea for we, but not for the.

    1. Yeah, sure there is….I think his full statement was something similar to: mens rea for we, but not for the

      So you’re convinced there’s a conspiracy here?
      And that no defense attorney would use mens rea, even though the common law has been precedent for 800 years?

  18. would face serious consequences, possibly including dismissal and permanent loss of his security clearance.

    Okay, let’s do that. Forget jailing her, just fire her from government and ban her from office that requires security clearance.

    1. The Repubs yesterday more or less tried to pin Comey down on this. He kept weaseling out with “part of the considerations” and “it depends” kinds of stuff. He even spewed the opinion that, since she’s not in government service, no consequences apply.

      1. He even spewed the opinion that, since she’s not in government service, no consequences apply.

        Who’s your dealer? How do I get as high as you?

        1. He did state that.
          You are the one who is looking at this through partisan/tribal (love that one) eyes.
          It is clear you want a complete incompetent to become the Commander-in-Chief of our armed forces and to be the one to conduct all levels of administrative activities that the leviathan of the federal government has taken on for itself, and one who lies as easily as she breathes, at that.
          Just admit it and give up the ridiculous “common law” excuses. It is impossible to prove what is in one’s mind, or what knowledge someone has, when the commit an offense. The idea that one must prove the impossible would preclude any criminal convictions from having ever happened, because, in your mind, the claim “I didn’t know what I was doing, was wrong” is enough for exoneration.
          You are pathetic.

          1. He did state that.

            More bullshit.

            It is clear you want a complete incompetent to become the Commander-in-Chief

            That’s literally insane. In your primitive tribal mind, defending the rule of law means wanting Hillary to be President! Do you know this is a libertarian website.

            Just admit it and give up the ridiculous “common law” excuses

            (sneer)
            You just made a total fucking fool of yourself to anyone who remembers US History.

            The idea that one must prove the impossible would preclude any criminal convictions from having ever happened,

            True. Do you know what a Strawman Fallacy is?

            because, in your mind, the claim “I didn’t know what I was doing, was wrong” is enough for exoneration.

            Liar. NOW you reject the elementary concept of “innocent until proven guilty!!”

            You are pathetic.

            (snicker) And Jacob Sullum, and anyone else who knows more than you.
            I can’t be bullied by a fool who denies the presumption of innocence and never heard of the common law.

            This link takes you directly to results of a search for “mens rea” and “common law.” Take your pick from the 251,000 listings. Or read a US History textbook, which will be more productive than stalking me.

  19. There are plenty of prosecutions based on gross negligence that the FBI and DOJ believed were appropriate.

    But, so what? Hillary clearly had intent, as evidenced by the cover up.

    1. But, so what? Hillary clearly had intent, as evidenced by the cover up.

      Umm, there was no coverup PROVEN. In the American justice system, people are innocent until proven guilty.

  20. What a tool. Mens rea doesn’t require knowledge of the law, only wrongdoing in a broad sense, and she certainly knew she was breaking the rules.

    1. Hillary was schooled in the proper handling of classified documents when she became Sec of State. She knew what she was doing is illegal

      1. She should have been given similar training even as a Senator. Sitting members of the senate also have access to some classified materials.

    2. and she certainly knew she was breaking the rules.

      Rules aren’t law.

  21. It would be awfully fair of him to resign for being such a manipulated patsy.

  22. Leave the man alone. Everyone one that crosses Killarney ends up dead.

  23. My question: Is Comey really so stupid as to believe the crap he’s peddling or, ala Gruber, does he think we’re stupid enough to believe the crap he’s peddling?

    1. The answer to both is NO- he just doesn’t give a shit

    2. My question: Is Comey really so stupid as to believe the crap he’s peddling or, ala Gruber, does he think we’re stupid enough to believe the crap he’s peddling?

      Apparently, you’re stupid enough tp deny 900 years of the common law, or that it serves as legal precedent unless overturned by SCOTUS. Very few Americans understand how the common law is applied, which is why very tribal partisans are so easily manipulated here. Sullum tried, but if one refuses to see the truth ….

  24. Thanks to Comey, the American voting public will get to decide how much they care about Clinton’s e-mail situation. And that means whoever gets elected president will have enough credibility to govern effectively.

    Comey might have saved the country. He sacrificed his reputation and his career to keep the nation’s government credible.

    The FBI, Credibility, and Government

    I don’t agree. To me Comey is just another example of the government discrediting itself.

    1. Comey sacrificed his reputation and career to keep Hillary Clinton out of prison.

    2. That asshole Comey isn’t a raging partisan zealot.DAMN. I KNEW Sullum’s explanation would incite the goobers, and anyone else who didn;t get it tor doesn’t care.

  25. Is Comey also a big proponent of jury nullification? It seems that he vigorously supports letting people who violate bad laws go free, and his standards for determining such cases don’t even require 12 randomly selected people to agree. Just one is, apparently, enough.

    1. Is Comey also a big proponent of jury nullification?

      Jury nullification has not been part of the common law for over 500 years.

      supports letting people who violate bad laws go free,

      Read it again.

  26. I need to look up more information about the case The Judge brought up yesterday. The one about a Marine who was prosecuted for “accidentally” using his gmail account to send an email with classified info about Al Qaeda plants in their camp.

    It should be easy to dig up cases where mens rea was not considered and thus contradict Comey on his claim of finding only one case.

    1. I think it’s the case of Marine Reserves Major Jason Brezler. I haven’t yet read all the details of his case.

      Reason needs to do a very detailed analysis of cases like Brezler’s and others and get it printed.

      1. What difference does it make at this point?

        1. I think it’s that every opportunity to point out that the emperor has no clothes can be helpful.

      2. Reason needs to do a very detailed analysis of cases like Brezler’s and others and get it printed.

        He intentionally sent the email as a warning, hoping to save lives. Three troops were shot to death by the Afghan that Brezler warned was a threat.

  27. Were this the case, fine, I would begrudgingly agree. But I am so damn sick of hearing people call this “negligent” or “careless”. Her own documents have shown that the intent was there from day one. Instead of being CARELESS, she was extremely CAREFUL — careful that her official emails would not be subject to the law of the land, that is, scrutiny under FOIA. If there is malicious intent, the mens rea standard does not apply here. In other words, complete and utter bullshit from top to bottom from Comey.

    1. Her own documents have shown that the intent was there from day one.

      You know more than Gowdy and everyone else? Or do you frequent conspiracy websites?

      1. He probably just knows what everyone else does; that she deleted thousands of documents subject to FOIA requests and criminal investigation. She destroyed evidence.

        Lets apply a little common sense and ask ourselves; is it more likely that she was destroying evidence of innocence, or evidence of guilt?

        1. Lets apply a little common sense

          1) When will you start?
          2) If you were a prosecutor, would that be your closing argument to a jury?
          3) What evidence do you have that she destroyed emails?
          4) Do you know what a :strawman fallacy is?
          5) Why such contempt for 900 years of binding common law precedents (mens rea)?
          6) Why such contempt for “innocent until proven guilty?
          7) Are you the GOP committeeman in your precinct?

  28. This is all a moot point because BOOOOSSSHHH admin did it first. Why weren’t you all screaming for Rice and Powell to get charged? You’re all a bunch of Republican sheep!

    /Tony

    1. Rice & Bush had their own servers in their basements? Wow, where were The Washington Post and the New York Times?

    2. Nate, what part of Free Minds AND Free Markets don’t you understand?

      1. I must be stupid because I have no idea what you’re getting at.
        Could you explain?

        1. Free Minds and Free Markets is the Reason motto. Lots of republicans wander in here pleased by the lack of communists (commies are repelled by Free Markets). But those same conservatives are disappointed to find that Klansmen, fetus forfeiture zealots and Nationalsocialists are not represented here either (coercive brainwashing is incompatible with Free Minds). Like Arlo Guthrie, who turned himself in for littering in the Alice’s Restaurant Massacre, conservatives fail to realize there is a THIRD POSSIBILITY that not collectivist, not looter and neither dictatorial nor warmongering. We are the Libertarian Party and we’d be tickled to have your vote for out ticket this coming election. Anyone can read the platform at LP.org

          1. Oh fuck off. You Goddamn wacko, and your weirdo ramblings about the GOP and abortion that you manage to insert into every fucking comment thread. Just fuck off.

          2. So what the hell does that have to do with me poking fun at Tony for his insessent “But Bush did it first” crap?

            And if you’re implying that I’m a conservative or a Republican for doing so, you can kindly fuck off.

      2. Nate, what part of Free Minds AND Free Markets don’t you understand?

        What part of relevance don’t you understand?
        And why are you talking to yourself again?

    3. If it where up to me. We would go after Rice and Powell as well. The best way to get rid of a bad law is to enforce it to the highest degree possible. Once the big fish start getting caught up in it. They will change it.

    4. This is all a moot point because BOOOOSSSHHH admin did it first

      It was Boooosh himself.
      So did Raaaaaaaaaaagan and Chaaaaaaaaaaaaaney. And Ford pardoned Nixon

      Why weren’t you all screaming for Rice and Powell to get charged?

      Beause they’re not Booooooooosh?

  29. Scott Adams agrees with Jacob on the grounds that voters, not some FBI enforcer of victimless crime laws, should decide whether the emails were important. Thanks to victimless “criminal” Julian Assange, voters can actually READ those emails. They show the federal government, blindsided by Bush Administration use of police nationwide as asset-forfeiture looters wrecking the economy, desperately exporting through treaties the same prohibition and tax policies that ruined us in the Herbert Hoover administration. Why?
    If foreign governments predictably commit financial suicide, U.S: investors can recoup their losses by shorting those foreign currency and securities markets. It worked. The US recovered and everyone else is broke.

    1. Scott Adams agrees with Jacob on the grounds that voters, not some FBI enforcer of victimless crime laws, should decide whether the emails were important.

      So, (lynch) mob rule, not rule of law? Consequences should be determined, not by what the statutes actually say, but by what a majority of people say they want?

      No thanks.

      1. So, (lynch) mob rule, not rule of law?

        Voters are a lynch mob?

        Consequences should be determined, not by what the statutes actually say,

        Sullium did a poor job of describing how the common law trumps statutes, for 800 years now. Mens rea traces to the common law, which means it has the same level of legal precedent as a Supreme Court ruling today.

        That’s the main reason that Jefferson only gave a few examples of unalienable rights in the Declaration, and why the Ninth Amendment does not specify which rights that states can have no power over. (Any level actually)

    2. That’s a very bad idea. Unless you have a special ballot issue (imagines the Colosseum filled with people with thumbs down), this gets conflated with unrelated issues. And does this apply to all of us? Wait until my next election, judge.

  30. After listening to his testimony, I’m 99.999% sure he could have made the case that there was intent. But, it seems to me, just like other ‘investigations’ against government officials, they didn’t really try very hard. To not even review testimony given under oath in regard to the very case you are investigating is dereliction of duty in my opinion. I think he’s using the mens rea argument as a straw man in this case.

  31. WooHoo!! So drunk driving is legal again. I mean getting blackout drunk then driving down the road isn’t intending to cause harm, it’s just grossly negligent.

  32. The only way mens rea reform will get any traction is if people like HRC are prosecuted in cases like this. These people like HRC and the rest of the establishment need to feel the pain they cause so many others who do not get the benefit of such prosecutorial discretion.

    1. The only way mens rea reform will get any traction …

      Nope. It requires a Supreme Court ruling to overrule it. Until then, cases like this will be dismissed before a trial even begins.
      Your contempt for presumption of innocence is downright scary..

      1. The sorry state of mens rea requirements results from a belief of federal prosecutors, federal judges, and a substantial majority of the voting public that it would be too difficult to successfully prosecute white collar crime with any mens rea requirement at all, let alone such a requirement set with a high bar. A get out of jail free card for the powerful will NOT improve this sorry state of affairs.

        I find it absolutely appalling that a person entrusted with high office in our government is held to a lower standard of criminal behavior than any of us commoners. Proof of mens rea is not a requirement for proof of guilt in at least one of the statutes in question. My comment does not address presumption of innocence, or even hint at same. It does concern a presumption of mens rea in federal criminal law that no one posting on this site would receive. I hold the presumption of innocence in high regard.

        Your contempt for reading comprehension is downright scary.

        1. (laughing) Exposed as a dumbass, changes the subject and fucks up AGAIN!

          Your contempt for presumption of innocence is downright scary.

          The sorry state of mens rea requirements

          They trace to 900 years of the common law, chump
          This link is to the results of a Google search. A mere 279,000 proofs of your ignorance,

          How many imes can one tribal thug humiliate itself on a single page.
          Will the Father of Two raise his children to be trashmouth bullies like him?
          It’s true. This generation has gone to hell. 🙁

          1. Good grief. I made a comment on mens rea. You replied to my comment imputing to me an opinion about presumption that I did not express in my comment. You changed the subject, not I.

            State and local law largely largely take their direction from British common law, and therefore mens rea is generally a critical element of guilt in state/local criminal prosecutions. Federal law, by contrast, consists entirely of federal statute, regulation resulting therefrom, the US Constitution, and interpretation of these items – not common law. Mens rea requirements are generally absent in federal criminal prosecutions. That’s why so many people at Reason write about mens reas reform, which I support. This article deals with federal not state law.

            Before you declare others ignorant, I suggest you at least learn the difference between state and federal law. Now look at your language and look at mine and then try really hard to determine whose is thuggish. (Hint, find a mirror). My children argue their positions respectfully and treat people courteously. Neither would use your language, and they are sufficiently articulate that they never need to do so.

            1. Good grief. I made a comment on mens rea.

              Which was false. .Now you’re confused.

              Federal law, by contrast, consists entirely of federal statute, regulation resulting therefrom, the US Constitution, and interpretation of these items – not common law.

              1) Why did Jefferson give only a few examples of unalienable rights in the Declaration, instead of a list?

              2: )The 9th amendment limits those powers at ALL levels of government.

              The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

              What are those rights? Be specific.
              I didn’t think so.

              Before you declare others ignorant,

              Tell us those rights which are superior to all levels of government …. but never named

              That’s why so many people at Reason write about mens reas reform, which I support.

              Sullum supported FULL mens rea, you opposed:

              Sullum: “It is heartening to hear the head of the FBI, who also has served as a U.S. attorney and deputy attorney general, defend this principle …..The principle is worth defending, even if it benefits Hillary Clinton.”

              You: “The only way mens rea reform will get any traction is if people like HRC are prosecuted in cases like this”

              Mens rea reform will gain traction when it is ignored???
              Tell me again about reading comprehension.
              And which rights are unalienable.

  33. Hillary knew she was breaking the law. She rolled the dice that she wouldn’t harm national security while hiding her activities from oversight.

    1. We need evidence. Your opinion has no legal standing.

      1. She signed a form that stated she understood the pertinent laws.
        Anyone, who handles classified information, does so and the main reason for such training and positive assent that they understand, is so that they can’t claim that they didn’t.
        Did Comey, ever, say that she made that claim? Or just that he was giving her a huuuuuge benefit of the doubt?

        1. She signed a form that stated she understood the pertinent laws.

          How is that relevant?
          .

          Anyone, who handles classified information, does so and the main reason for such training and positive assent that they understand, is so that they can’t claim that they didn’t.

          (laughing) When do your fantasies assume she made such a cliam

          Did Comey, ever, say that she made that claim?

          He would be crazy to say so.

          Or just that he was giving her a huuuuuge benefit of the doubt?

          Do you even realize that you just said Comey should sat she made such a claim EVEN WITHOUT EVIDENCE. You deny the very existance of 900 years of common law … and now you deny presumption of innocence.
          Your raging hatred has no standing in denying the unalienable rights endowed by a Creator.

          You never heard of the common law, so you made a massive fool of yourself, and now you’re repeatedly attacking me for exposing you, But denying the common law is roughly equivalent to denying the law of gravity. I’m loving it..

  34. RE: FBI Head Says Prosecuting Hillary Clinton for ‘Gross Negligence’ Would Be Unfair
    James Comey says justice demands proof of criminal intent, even when the law doesn’t.

    Of course prosecuting Heil Hitlary would be unfair.
    She is one of the key ruling elites that help fuel the engine of the Great People’s Revolution.
    No can doubt if she is prosecuted, her campaign to be the Secretary General of our beloved socialist slave state would be greatly crippled.
    Therefore, logic dictates the rule of law must not be employed if we are to have great leaders to guide us into a socialist paradise.
    Sacrifices must be made for the sake of the collective, and turning a blind eye to the incompetence and/or lawbreaking by one of obvious betters must be allowed if we are to be as a great a nation as Cuba, North Korea or Venezuela.
    Who amongst us is to be so blind as to disagree?

  35. From FBI Director Comey, “prosecuting Hillary Clinton for gross negligence would be unfair”. He actually said that, amazing, absolutely amazing. That being said, were it John or Jane Q. Public who was guilty of such “gross negligence”, would he or she get the benefit of such largess, I think not, but then I’m a suspicious old man, one who still insists that two plus two are four, nothing else, and to hell with current fashions, such as they might be. The Ca Ca del Torro level is simply to damned high.

    1. Therefore, logic dictates the rule of law must not be employed if we are to have great leaders to guide us into a socialist paradise.

      Which part of mens rea has you going off the rails this time?
      I mean … 800 years of legal precedent?

  36. Let’s not look a gift horse in the mouth. The Director of the FBI says “mens rea” is necessary before prosecuting a crime. Fine. So carrying a gun within an arbitrarily-defined “school zone” needs to show that the accused knew it was a school zone. Having a gun in carry-on bad while passing through a TSA airport security check point needs to prove that your claim you didn’t know the gun was still in the bag is false.

    There are all sorts of laws where “strict liability” negates the prosecution needing to prove intent to the jury.

    Now the FBI Director says “no reasonable prosecutor” can bring such a case.

    Yes!

    1. You are, of course, ignoring the far more likely possibility: unreasonable prosecutors.

      1. More important, SCOTUS has ruled on both of those.
        “mens rea” applies unless explicitly overruled, case by case, by SCOTUS. Has been that way for 800 years under English common law, and now in every former British colony … except Louisiana and Quebec which follow French common law.

  37. I agree that we have far too many laws on the books which impose criminality without mens rea. There should be few, if any, such laws. But it’s the job of Congress to change them, not of Comey to unilaterally impose that standard in this one specific case. He should take his arguments to Congress, and press for changes to the laws (although actually his FBI is doing precisely the opposite). But he swore an oath to uphold the Constitution and the laws as they are, not as he thinks they should be. If he can’t bring himself to do that he should resign.

    Comey is patently guilty of “high crimes and misdemeanors” (a little-understood phrase, but it basically refers to crimes peculiar to those with political power, such as dereliction of duty, perjury, abuse of authority, etc.). This is a textbook example of it. He should be impeached.

    1. But it’s the job of Congress to change them, not of Comey to unilaterally impose that standard in this one specific case.

      Why do you assume that? Mens rea is from the common law, which outranks statutes … since hundreds of years before our founding.

      1. Unless, five, out of nine, glorified lawyers, say it isn’t?
        That’s not much of a standard, certainly not one we should rest our entire criminal justice system on.
        Your tribal slip is showing, cover it up, lest you become the “partisan” you accuse everyone else of being.

        1. Unless, five, out of nine, glorified lawyers, say it isn’t?

          Per the Constitution … or are you ignorant of that too.

          That’s not much of a standard, certainly not one we should rest our entire criminal justice system on.

          You just made a total flipping ass of yourself AGAIN, by denying the constitutional powers of the Supreme Court.

          Get a grip.

  38. Regarding security, intent absolutely is not required. Loose lips sink ships. Comey places his desire above justice.

  39. Taking time out from shredding the bill of rights, naturally the grotesque sadist Mr. Comey will ensure the election of his master.

    No man in American history hates liberty more than he does.

    1. Taking time out from shredding the bill of rights,

      (lol) you just denied the 9th amendment .. 900 years of common law … and the very concept of rights.

  40. Thank you, Jacob, for also exposing Trey Gowdy as the blatant liar that he is.
    I’d just add that mens rea, is a common law test of criminal liability, which means it has standing equal to a Supreme Court ruling as a judicial precedent.

    But that will confuse all the goobers on the far right, including Ron Paul’s brainwashed puppets, that all fundamental rights are NOT listed in the Constitution. just as the Jefferson listed only examples of unalienable rights in the Declaration. Sorry, goobers, but the Ninth Amendment was never repealed, which means NO level of government has powers which have not been expressly delegated by the sovereign people.

    1. SCOTUS has also upheld the constitutionality of strict liability offenses, which have no mens rea requirement. Such as, the mishandling of classified information.

      But please, keep repeating the same ignorant tripe and maybe it will come true.

      1. Pay attention Sparky.
        1) Mens rea is from the common law
        2) The common law has the same status as a Supreme Court interpretation of the Constitution.
        3) Thus, actual rulings are required.to nullify it, case by case

        So cite the ruling regarding classified information, which appears to be known only to you.
        And please keep repeating that ignorant tripe.

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