Hillary Clinton and "Intent" -- Can the Rest Of Us Get A Mens Rea Defense From Prosecution?
Yesterday, the FBI said that Hillary Clinton should not be prosecuted because, though she clearly violated laws about management of confidential information, she had no "intent" to do so. Two thoughts
- Even if she had no intent to violate secrecy laws, she did - beyond a reasonable doubt - have intent to violate public transparency and FOIA laws. She wanted to make it hard, or impossible, for Conservative groups to see her communications, communications that the public has the right to see. In violating this law with full intent, she also inadvertently violated secrecy laws. I don't consider this any different than being charged for murder when your bank robbery inadvertently led to someone's death.
- If politicians are going to grant each other a strong mens rea (guilty mind or criminal intent) requirements for criminal prosecution, then politicians need to give this to the rest of us as well. Every year, individuals and companies are successfully prosecuted for accidentally falling afoul of some complex and arcane Federal law. Someone needs to ask Hillary where she stands on Federal mens rea reform.
"That's contrary to equal protection. However, they shouldn't get more lenient treatment either."
Not necessarily. The Constitution in its text refers to High Crimes and Misdemeanors that are grounds for impeachment, the purpose of that description is to make those in office subject to more intense scrutiny and in the case of impeachment proceedings, require only the preponderance of the evidence standard instead of beyond reasonable doubt used for criminal trials by jury. What this means is the deck is suppose to be stacked against the politicians who interests are nefarious and contrary to the principles of the country. Unfortunately that deck is also controlled by the same circle of people in DC (Congress) and they have chosen to forsake their duties for political influence and power.
We're treating her differently precisely because her name is Clinton. This wasn't "mere" negligence, this was at best gross negligence. Comey is saying that the precise details and specification and intent of the law must all be ignored, with prosecutors reinterpreting at their convenience.
Yes, Comey went through some contortions to pretend that this wasn't a political decision, but his reasoning was amazingly weak.
In the 80's a Navy air crewman lost his security clearance and his job because he left his jacket in a Navy Exchange snack bar. When the jacket was found it was turned over to Base Security. When they inventoried the contents of the pockets they found a copy of a Flight Schedule that was a few days old. He was charged with mishandling classified information. The loss of his clearance meant that he couldn't do his job, so he was discharged. At that time a flight schedule was considered "Confidential" the lowest classification. I used to write grocery lists on the back of them. Timing might have had something to do with it, considering that they had just caught John Walker.
If anybody else had been accused of doing what Hillary did, they would have been in jail awaiting the outcome of the investigation.