Overcriminalization

No More Accidental Criminals

Why does Hillary get credit for good intentions, while the rest of us get condemned for honest mistakes?

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Hillary Clinton supporters should have a new appreciation for the legal concept of mens rea—usually translated as "guilty mind"because it saved her from federal prosecution for using a personal email server as secretary of state. In recommending that the Justice Department not bring charges against the former first lady, FBI Director James Comey differentiated her "extremely careless" handling of "very sensitive, highly classified information" from other cases involving "intentional and willful mishandling."

Not everyone gets the benefit of such distinctions. Consider the retiree on a snowmobile outing in Colorado who got lost in a blizzard and unwittingly crossed into a National Forest Wilderness Area; the Native Alaskan trapper who sold 10 sea otters to a buyer he mistakenly believed was also a Native Alaskan; and the 11-year-old Virginia girl who rescued a baby woodpecker from her cat.

The first two incidents resulted in misdemeanor and felony convictions, respectively, while the third led to a fine (later rescinded) and threats of prosecution. All three qualify as federal crimes, even though the perpetrators had no idea they were breaking the law.

The federal code contains something like 5,000 criminal statutes and describes an estimated 30,000 regulatory violations that can be treated as crimes. The fact that no one knows the precise numbers is itself a scandal, compounded by the fact that many of these provisions include minimal or no mens rea requirements, which ask prosecutors to demonstrate that an offender knew he was doing something wrong.

The upshot is that innocent acts, honest mistakes, and simple accidents can lead to criminal convictions that deprive people of their liberty and property, ruin their reputations, and carry lifelong collateral consequences ranging from impaired occupational opportunities to the loss of constitutional rights. That's a serious problem, which is why mens rea reform has garnered bipartisan support in the House of Representatives.

Yet Senate Democrats dismiss the proposed changes as "corporate protection." Their chief complaint is that requiring the government to prove a defendant knew he was breaking the law will make it harder to convict people.

No kidding. The same could be said of many safeguards widely supported by civil libertarians, including the presumption of innocence, the requirement of proof beyond a reasonable doubt, and the ban on double jeopardy.

Guilty people, including violent criminals, surely escape conviction because of these rules. Likewise, if Congress beefed up federal mens rea requirements, some white-collar malefactors and felonious fat cats probably would escape criminal punishment as a result. But that prospect should not deter Congress from doing what's right.

"They're saying, 'It would be a terrible thing, because the people we don't likecorporate executivesthey will be able to get off by arguing that there's absolutely no criminal intent on their part,'" attorney Harvey Silverglate, a leading critic of overcriminalization, told Reason TV. "So you want absolute criminal liability for people you don't like. However, when they come at you, suddenly you say, 'Well, I didn't intend to break the law.'"

That defense is deeply rooted in our moral intuitions and legal traditions. As the Supreme Court observed in 1952, "The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil."

To impose criminal penalties on people for inadvertent violations of the law is plainly unjust. That the guilty will sometimes benefit from this principle is no excuse for denying its protection to the innocent.

NEXT: AR-15: Have It Your Way

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  1. Mens rea can be relevant when casting spells via email servers and must be aggressively prosecuted for those who provide safe spaces for trolls online.

    Jill Stein approves this message.

    1. Frank Stein also likes it.

    2. Can you say anything that is not batshit insane?

  2. Mens rea only applies to the ruling class.

    1. I’m pretty sure it was not even necessary to go so far to find examples. Rank and file employees will be punished for mishandling classified material regardless of whether they knew it was classified.

      And of course even when they catch the top level guys dead to rights, they just pardon them.

    2. And their enforcers, as with the “good faith” exception for cops who violate the Constitution they’re sworn to uphold.

  3. So native Alaskans are more equal, then?

  4. We’re also dealing with a viciously partisan ideologue in President Obama.

    The biggest story in the world right now is Deutsche Bank.

    To make a long story short, it came out a couple of weeks ago that the Obama Administration wants $14 billion to settle its ongoing investigation into Deutsche Bank’s. That was big news for four reasons.

    1) Deutsche Bank’s market capitalization was only about $17 billion

    2) If the Obama Administration fines Deutsche Bank for almost all of its market capitalization, why would anyone hold onto the stock?

    3) Merkel is no position to bail out Detusche Bank.

    4) If Deutsche Bank is fined into oblivion, then why would anyone leave their deposits in the bank?

    Deutsche bank’s stock tanked, and a classic run on the bank materialized. . . . all foreseeable as anything.

    Under normal circumstances, you might think the Obama administration initiating an international financial shock–in the name of stability–would be incredibly incompetent, but that isn’t the worst of it.

    The Financial Times printed an article on Friday, quoting unnamed sources stating that all of this is being orchestrated for maximum shock value–to coincide with where we are in the election cycle.

    In other words, Obama is purposely subjecting the international markets to shocks because being seen as anti-big bank will favor Democrat(s) in the upcoming election.

    The correct word to describe such behavior is “evil”.

    1. The safe money will run to US Treasuries.

      It’s a risky bet though. He could tank the US stock market by accident. It’s inflated as it is. Unless of course, he has the complicity of the big US banks and trader outfits. He’s got JP Morgan in his pocket, but the rest are suspect.

      1. I understand what you’re saying about it being risky because Obama could set the financial markets into a tailspin, but, understand, that Obama doesn’t really care about that.

        If Hillary Clinton getting into the White House depended on Obama doing something that sent the U.S. into a recession, he’d do it in a heartbeat.

        Obama only cares about the economy insofar as it impacts the election cycle.

        It’s hard for decent people to think that way, but that’s the way he thinks. It’s like Alexander the Great sending men to die in battle. Normal people have a hard time understanding how someone could do something like that. You sent your men off to die in a trap so you could gain a more critical advantage elsewhere on the battlefield.

        You probably don’t have what it takes to treat patriotic Americans who salute you as cannon fodder. I doubt Alexander the Great, Napoleon, U.S. Grant, or Barack Obama are much fun to be around. They’re genuine assholes. They shit all over everybody.

        Barack Obama doesn’t care if millions of people find themselves unemployed. He cares that Hillary Clinton is the next President.

        Incidentally, here’s a report from Reuters today about the German media explaining why Merkel can’t bail out Deutsche Bank:

        http://www.reuters.com/article…..SKCN1213D5

        Everyone knew that German bailout couldn’t happen before the Obama Administration leaked the amount of the fine. Obama knew it, too. He just doesn’t care.

        1. Alexander the Great, Napoleon, U.S. Grant, or Barack Obama

          One of these things is not like the others.

          1. Just because things aren’t alike in every way doesn’t mean they aren’t comparable in any way, and those people are all alike in that they treated people like you and me as if they were disposable.

            Barack Obama doesn’t care if people lose their jobs any more than Napoleon cared whether some of his men got shot by the enemy. I don’t know why that should be hard to understand.

          2. If I say that “Women are like flowers in that they’re all beautiful in their own way”, that comparison isn’t invalid because flowers don’t have arms and legs.

            Right?

            Right.

            1. You’re taking a comment with a link to Sesame Street way too seriously.

              1. Comparisons aren’t valid if the things being compared are in any way dissimilar?

                Yeah, I admit it’s a pet peeve.

                1. If they were in no way dissimilar they would not be different things. That is the whole point of an analogy, to compare the poorly understood to the well understood in order to gain understanding of the poorly understood.

                  As John points out, you are taking that too seriously.

                  1. Do you guys not know what a pet peeve is?

                    They’re personal things people take to seriously.

                    Playa Manhattan doesn’t like Chipotle.

            2. “All happy families are alike; each unhappy family is unhappy in its own way.”

    2. Obama is purposely subjecting the international markets to shocks because being seen as anti-big bank will favor Democrat(s) in the upcoming election.

      re: Shocks? not really.

      I don’t doubt the admin is trying to get some positive publicity out of the settlements; i just don’t think the settlements are significant enough to cause any real market instability.

      The DAX fell 40% between early-2015-early-2016; which i assume probably has more to do with trends in Euro strengthening, dollar falling, and concerns about the future viability of the EU market. American legal wrangling w/ EU banks isn’t really forming the basis of any “international financial shock”.

      I also don’t think anyone in the US (outside of the zerohedge crowd) is paying any attention to this sort of stuff. They’re more interested in what Trump said about some fat, latina Miss America (Universe?) or something.

      1. “I also don’t think anyone in the US (outside of the zerohedge crowd) is paying any attention to this sort of stuff.”

        Here’s a good collection of the thinking in Germany.

        http://uk.reuters.com/article/…..KKCN1213D5

        Do a google news search on Merkel and Deutsch Bank and see all the international coverage they’re getting.

        Here they’re asking whether Deutsch is the next Lehman Brothers:

        http://www.telegraph.co.uk/bus…..irst-time/

        New Century failing didn’t hit the mainstream until Lehman and Bear went bust a year later. They went belly-up a year after New Century and other subprime lenders went down.

        Regardless, Obama was planning on making a big splash in the media *about the fine*. . . . which was leaked. They’re still trying to get two others to give in on a settlement so they can make a huge announcement all at the same time.

  5. Speaking of crime, here is another voting rights crusade – a judge has been convicted of a felony involving corruption, but she has managed to postpone starting her sentence. So her lawyer says she should stay on the voting rolls, despite being a convicted felon, until and unless she goes to prison.

    1. I don’t think felons should be disenfranchised.

      Perhaps if felonies were limited to actually serious crimes as they were originally intended to be, I might find it reasonable? Given the status quo, nope.

    2. Well – she *hasn’t* started her sentence yet, correct? Time isn’t counting down for her right now. So its actually perfectly logical that her loss of civil rights occurs at the same time. If she lost her voting rights *now, they’re not going to restore them *before* she gets out of prison, are they?

      And the law, as written is clear and unambiguous. That it may not be what is *intended* is, again, the fault of a legislature that can’t parse the word ‘and’. Convicted *and* incarcerated is disqualifying. And that’s kind of important. Being convicted alone does not disqualify you – after getting out of prison you’re eligble again. And simply being incarcerated does not disqualify you – you can be in jail because you’re a material witness, because you can’t make bail, etc.

      1. OTOH, its pretty obvious that anyone sueing to stay on the ballot in this situation is fucking insane and should be disqualified for that reason alone.

  6. The upshot is that innocent acts, honest mistakes, and simple accidents can lead to criminal convictions that deprive people of their liberty…

    Sullum wants to deprive federal prosecutors of resume padding. Everything is criminalized because every voter wants to have the club of government swung at her whim, and every leader wants reasons available to hold citizens under his thumb.

  7. Her and her husbands ability to break the law with impunity has nothing to do with mens rea.

  8. “Consider the retiree on a snowmobile outing in Colorado who got lost in a blizzard and unwittingly crossed into a National Forest Wilderness Area; the Native Alaskan trapper who sold 10 sea otters to a buyer he mistakenly believed was also a Native Alaskan; and the 11-year-old Virginia girl who rescued a baby woodpecker from her cat.

    The first two incidents resulted in misdemeanor and felony convictions, respectively, while the third led to a fine (later rescinded) and threats of prosecution.”

    It’s all about politics. None of those people are on the right side of Barack Obama’s agenda. Helping them doesn’t help his ideological cause at all. In fact, it might serve his ideology to make an example of some of them. Like Putin using polonium to assassinate his enemies–because no one else could use polonium. He wants you to know he’s the one that did it. Isn’t that what Obama’s been about all along? The man will go after nuns if they get in the way of his healthcare plan–how convenient was that if he wanted to make an example out of somebody?

    Retirees, trappers, and little girls? How dare they–or anyone else–think being innocent could protect them from the greater good?

  9. Here’s a terrible thought: What if Hillary Clinton selling her Presidency off to the highest bidder were actually better for America than what we have now?

    At least the terms of justice would be clearer and less arbitrary. Precedent? Mens rea? Rule of law? Principles of justice? Why worry yourself with that when you can just cut a check to the Hillary Administration and be done with it? If you lose because you didn’t pay off the right people, at least that’s something people can understand.

    That might actually be better than Barack Obama arbitrarily using the coercive power of government to dispense or withhold justice, initiate financial shocks around the world, etc.–all depending on whether it serves the greater good of his political ideology and serves the interests of his preferred candidates.

    1. Imagine if she sold it to Warty. I’d have my porn Czar position in the bag.

    2. Imagine if she sold it to Warty. I’d have my porn Czar position in the bag.

    3. Imagine if she sold it to Warty. I’d have my porn Czar position in the bag.

      1. Or Internet Squirrel Czar.

        1. You rang?

    4. That might actually be better than Barack Obama arbitrarily using the coercive power of government to dispense or withhold justice, initiate financial shocks around the world, etc.–all depending on whether it serves the greater good of his political ideology and serves the interests of his preferred candidates.

      Wouldn’t quite call it arbitrary. I’m sure there’s a always powerful crony somewhere that was pushing from each and every thing Obama has ever done, and who has profited disgustingly from the result.

      1. Well, like I said, he’s pushing ideology and his personal favorite candidates.

        Environmentalists don’t want people in government controlled wilderness areas, trapping sea otters, or messing with wild birds.

        So if they get the finger, that isn’t “arbitrary” per se–unless for some reason you think the rule of law is important. Otherwise, being outside Obama’s ideological good will meaning you’re outside his legal protections is actually consistent.

        Barack Obama will purposely initiate systemic shocks through the world’s financial system to goose a percentage point or two for Hillary in the upcoming election. Consistently favoring those who share Obama’s ideology–even to the point of jeopardizing the stability of the world’s banking system–isn’t “arbitrary” exactly . . . unless you think some other consistent standard should be in place like the rule of law.

        Most people these days don’t seem to give a shit about justice or the rule of law–they just want to demonize the bad guys, which sounds circular because it is.

  10. I believe other people have been prosecuted for handling classified material under the strict liability standard. But the fact that strict liability even exist should be sufficient reason to beat the fuck out of your average federal district judge.

  11. From a speech by Ignatius Joseph III Younan, Patriarch of the Syriac Catholic Church of Antioch

    “We, the Church pastors, kept warning Westerners who pretended to have the right to interfere in Syria in the name of democracy that fomenting violence would surely lead to terrible sectarian war because of the complex religious and ethnic diversity in Syria. We knew innocent people, primarily Christians and minorities, would suffer most.”

    1. How was it the old Jewish prayer went in Russia: “God bless and keep the Czar–far away from me”?

      We used to have discussions around here about why Jews seem to be so distrustful of those of us who oppose a strong central government. Strong central governments don’t like disorder. When the pogroms happened in Russia, they may have happened sometimes at the Czar’s wishes, but they would end when he wanted them to end.

      Being a minority in a democracy sucks, and being a minority that has to depend on an authoritarian dictator sucks even worse.

      It doesn’t surprise me that Christians in Syria disproportionately backed Assad.

      And revolutions are nasty affairs.

      1. The dictator of Syria was one of those off-brand Muslims – Alawite, I think – with an interest in discouraging sectarian persecution, since his own group would come out badly at the hands of the majority.

        1. was, is, I don’t know what the guy’s status is. I suppose he’s still holding on.

        2. Exactly.

          If you’re a minority in a country like that, you want to back a strong government.

          We had that experience in the U.S., or the Native Americans did.

          One of the colonists biggest beefs against the British was that the British made the colonists abide by their treaties with the Native American tribes–and so the British wouldn’t let the colonists settle west of the Appalachians, go into the Ohio valley, etc.

          When the colonists won the American revolution, it was the worst thing that could have happened for the Native Americans.

          I have a qualitative preference for freedom, but there are winners and losers when the walls come tumbling down. The former Yugoslavia was like that, too. No doubt, the reason some of those tensions grew over time was because authoritarianism didn’t give them an outlet and communism didn’t give them the prosperity that dissipates those tensions (Jews, Muslims, and gays seem to get along great living on top of each other in Westwood).

          Still, when the dictator goes, the bullets start flying and the minorities will usually catch the worst of it.

          1. When the colonists won the American revolution, it was the worst thing that could have happened for the Native Americans.

            Because Canada doesn’t have a Pacific coast.

            1. You mean the Pacific coast that started mostly as decentralized small colonies that allowed local native peoples a massive amount of autonomy? Or you mean the massive westward expansion of Canada that occurred largely after Confederation when the colonial Canadians were allowed to govern themselves? How about the Indian and Gradual Civilization Acts that were both a product of Canadian colonials finally being able to set native policies?

              Both the British and the French historically were way more generous for pragmatic reasons than the colonial nations that replaced them. He’s absolutely right that in the long run, had the Thirteen Colonies remained a British colony and had Canada been given way less autonomy the native populations probably would have had a better deal. Probably not a great deal in the long run, mind you, but definitely better.

            2. What does that even mean?

      2. Being a minority in a democracy sucks,

        Yeah, being a Jew in America is just awful. We’re so persecuted!

        1. According to the hate crime statistics kept by the FBI, Jews are the primary victims of religious hate crimes. More than 50% of all hate crimes (57% in 2014) are committed against them. For a point of comparison, anti-Muslim hate crimes in 2014 were 16%.

          I get your overall point that in reality, few minorities are especially mistreated in modern America… but if you take “hate crimes” seriously, Jews seem to be statistically more persecuted than any other minority.

          As an aside, I love that women, the statistical majority, try to claim “minority” status. “You keep using that word, I don’t think it means what you think it means…”

          1. Spent my life living in the Jewish parts of the Chicagoland area. Never had an acquaintance or relative have any kind of story of a hate crime against them or anyone they knew. Have heard stories of people revealing anti-Jewish bias, but the simple fact is that we have it pretty damned great in this country.

            1. “My anecdotal story completely negates the anecdotal stories of any minority who has ever been abused in a democracy.”

              You are either missing or deliberately ignoring the broader point that Ken is trying to make, which is that when minorities are persecuted in a democracy they are often done so through support from a large percentage of the general population. So if you live in a society where sixty percent of the population hates Jews, would you rather allow those people to vote in a government, or support the strongman who’s more interested in stability than Holocaust LARPing?

        2. It wasn’t always this way. Hell, I’m not even sure most people think of “Jewish” as being any more of a minority than being “Italian”, “Irish”, or “Catholic”. Far as most Americans are concerned, being Jewish just means that you’re “white”, kind of like Mormons.

          Anyway, to whatever extent it doesn’t suck to be a minority in a democracy, it’s mostly to the extent that people’s rights aren’t subjected to popularity contests.

          I remember when they used to put gay people’s rights up for a vote. The gays couldn’t even win in California. Once the courts said the popularity of their rights wasn’t the issue, it didn’t suck so much to be them.

          Being an American of Japanese ancestry once meant you got to take your family to go live in an internment camp. Being a minority in a democracy certainly sucks if you have to depend on the majority to be magnanimous.

          If you have to depend on a vicious authoritarian (be it a czar or Assad) to protect you from the majority, yeah, that sucks even worse . . . because rights are ultimately only protected in free societies, and a free society requires democratic rule–meaning rulers chosen by the same majority that you want to be protected from during the transition to a free society?

          That sucks worse.

          P.S. How can it not suck to be outvoted by the majority? If you’re not Tulpa, then you and Tulpa should go bowling.

  12. Hillary is better qualified for Prez,,,, according to Weld http://www.politico.com/story/…..ent-228989

    1. Prolly true if you leave morally qualified out of the equation.

      1. Johnson has more executive experience. Trump has actual business experience. Hillary was married to a president and then fucked a bunch of shit up.

        1. Meaning Trump has zero political experience.

          GJ was a governor and that’s it.

          Clinton was a Senator, a SoS and was married to a former Pres.

          You can argue that being a governor is better prep for the job, but when it comes to a political resume, she’s seen a bunch of shit at the highest levels of government. She’d certainly be the one, of the three, that would require the least amount of being “brought up to speed.”

          Being qualified to be president doesn’t mean you’d make a good president…

          1. Trump has a ton of government experience – at the supplicant/crony level. He’s had to suck up to, bribe, figure out whose campaign to donate to, etc.

            He knows what its like to be at the mercy of someone who can say no. And knows how good it will feel to be that guy.

            1. Yes he’s quite familiar with unacknowledged roles of government. Good point.

  13. Hillary Clinton supporters should have a new appreciation for the legal concept of mens rea?usually translated as “guilty mind”?because it saved her from federal prosecution for using a personal email server as secretary of state.

    Seriously? Mens rea only applies to any potentially criminal act and Hillary has never ever ever done anything that might possibly be construed as a criminal act. Unless you’re part of the vast right-wing conspiracy racist/misogyny bunch who just make stuff up out of thin air to demonize her. Why would a single one of them give the least little thought to mens rea? What’s that got to do with Hillary?

    1. How could being careless wit classified material ever be considered criminal?

  14. NYT op-ed muses on the incomprehensibility of anyone not voting for Clinton

    The comments are the typical parade of the liberal-suburban consensus; where they continue to express amazement and confusion about “everything not themselves”… but cling to the cartoon-version of “everything not themselves” as truck-driving, gun-shooting, racist yokels, etc.

    Its seems they’re befuddled that the 24/7 Trump-bashing on CNN/NYT/WaPo has somehow failed to result in utter ruin and devastation for Trump; “DONT THOSE YOKELS EVEN READ!!?”

    the idea that their own propaganda is either unread, or unconvincing to others, never seems to occur to them

    Actually, the more-popular view? Is that the media *hasn’t been hard enough* on him. Its sort of like the “throw more money at failing programs”-concept so popular with the left.

    THE ONLY REASON that Trump has remained in the race is that the press, the media, the fourth estate – the institution we have always relied on – has failed. I hate sweeping generalizations. And I know there are members of the press corps that have indeed tried to hold Trump’s feet to the fire.
    But too many of you have continued to try to be “impartial”. Which means you have been permitting a lunatic to get close to the most important job on Earth. This isn’t partisan. This is good vs evil. This nuts or not nuts.

    1. i continue think the left will actually end up worse off during/after a hillary presidency than if she loses.

      Its a sort of remarkable situation where the victory of either candidate is actually the worst thing that could happen for either major party.

      1. ^THIS^ I couldn’t agree more! Though I am defintiely not voting for her, I do like the idea of Hillary pulling all the dems/proggies down the toilet if she wins. I fear that she could really fuck stuff up though before that happens, especially if she has a dem senate and possibly house to help her.

        I don’t think a Trump win would be as potentially damaging to the GOP since so many of them have already distanced themselves from him-they will not tolerate even the slightest misstep of a Trump administration.

      2. If Trump wins, he’ll restore a semblance of balance. He may or may not prove to be an embarrassment. He certainly won’t be a disgrace on the level of Bush Jr.

        If Hillary wins … expect a huge spike in political violence by BLM and other leftist groups. A Democratic administration is more likely to tolerate violence, and more likely to accede to their demands.

        If white Americans are faced with the likelihood of permanent one-party rule, by a party that openly despises white people, they will start fighting back. They can send armed militias to the polls, turn away non-white voters, and assassinate any government official who tries to intervene. They can elect sympathetic leaders and change the law so that non-whites are no longer allowed to vote.

        The Left screams about “disenfranchisement,” but they don’t really believe it can happen. They think they’ve already won and the de-Americanization of the country is inevitable. They’re going to learn otherwise.

      3. And then they’ll come crawling on their hands and knees to the libertarians. “We know that we were really mean to you guys and we called you racists and corporate shills … and we’re really sorry about that … now can you PLEASE do something about the violent white nationalists we created?”

      4. I continue think the left will actually end up worse off during/after a hillary presidency than if she loses.

        4 – 8 more years of entrenching the left in the permanent bureaucracy will make the popularity of their ideas less and less relevant. A judiciary and enforcement agencies thoroughly co-opted by the left, combined with a complaisant Congress, will be close enough to a victory for the next generation, at least. Even a very capable, very committed anti-leftist President following Hillary will be able to do very little to reverse the capture of the machinery of the state by leftists.

    2. The last part (before the quote) is spot on. Most of the Clinton supporters I’ve seen on line think the media has been biased towards Trump, in order to prop him up so they can maintain a “horse race” narrative. I’m not sure what exactly they want – the media to stress that Trump is literally Hitler and can’t be elected every time they mention his name? Short of that, I don’t know what would satisfy them.

    1. Is that a home movie HM ?

  15. Too. big. To. Fail.

  16. “Hillary Clinton got the benefit of mens rea considerations from the FBI, so why doesn’t everyone?”

    Because everyone doesnt have the power to destroy careers and lives of powerful people. Because everyone doesnt own a shoestore well stocked with bags of Quickrete.

  17. One law where I wish mens rea would be eliminated is the Civil Rights Act.

    Screws v US made the difficulty in prosecuting cops so far beyond mens rea it’s ridiculous.

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  19. If only hillary Clinton had been guilty of breaking some obscure statute buried deep in the books that no one in public service at her level were even remotely aware of.

  20. You don’t have to be a lawyer to understand that negligence rarely if ever comes with mens rea. No one thinks, “Oh I’ll leave this loaded gun on the floor where my toddler can get to it because I really want to.” Negligence is the test. As some one who once held a clearance, I can tell you that negligent handling once won’t see you in Levenworth or even fired. But continual negligence will see your clearance suspended, see you investigated, and, if the negligence is in clear violation of everything you were taught in handling classified materials, possibly prosecuted. Hillary and her staff continually violated every norm of handling classified material.

    But let’s get beyond classified material. What was the purpose of the private e-mail server? It was clearly to evade public disclosure. It was to hide their dealings from FOIA requests. There are exactly two forms of government information that are to be exempt for FOIA requests: 1) classified materials and 2) personnel data like PII. If FOIA evasion of this kind is not a crime, I think even we libertarians can agree that it should be.

    As for the rest of your poorly written article, of course most laws that do not deal with negligence should include mens rea. Of course, our federal statutes are ridiculously voluminous, vague, and often unconstitutional. Hillary’s negligent, at best, handling of classified material is not a good example for your point.

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