Balkinization  

Saturday, July 02, 2016

Some observations about Brexit (and the relevance of constitutional theory)

Sandy Levinson

[WHAT FOLLOWS HAS BEEN LIGHTLY EDITED SINCE ITS ORIGINAL PUBLICATION, PRINCIPALLY TO CORRECT SOME TYPOS, BUT ALSO TO CLARIFY A COUPLE OF POINTS.  NOTHING OF SUBSTANCE, HOWEVER, HAS BEEN CHANGED.]

[CORRECTION RE MICHAEL GOVE:  AN ATTENTIVE READER HAS POINTED OUT THAT MICHAEL GOVE DID NOT GO TO ETON, AS I MISTAKENLY WROTE.  INDEED, HIS WIKIPEDIA BIOGRAPHY SUGGESTS AN UNUSUAL BACKGROUND FOR A TORY LUMINARY:  HE WAS ADOPTED, IN ABERDEEN, SCOTLAND, BY A LABOUR-SUPPORTING FAMILY, WHERE HE GREW UP.  HE WAS, APPARENTLY, EDUCATED IN A STATE SCHOOL BEFORE ATTENDING WHAT IS DESCRIBED AS "THE INDEPENDENT ROBERT GORDON'S COLLEGE" ON SCHOLARSHIP.  HE THEN WENT ON TO LADY MARGARET HALL, OXFORD, WHERE HE SERVED AS PRESIDENT OF THE OXFORD UNION.  FOR BETTER OR WORSE, IT APPEARS THAT HIS BID TO BECOME PRIME MINISTER IS LANGUISHING, THOUGH, GIVEN CURRENT BRITISH POLITICS, ONE SHOULDN'T MAKE ANY STRONG ASSUMPTIONS.]]

There is much to say about Brexit, of course.  But one thing worth mentioning is that the Tory Party has now apparently become more radically democratic than even California.  Let me explain:  One of the ways that one traditionally distinguished the UK from, say, California is that the former was the standard example of parliamentary sovereignty.  That is, decisions were to be made entirely and exclusively by Parliament, though the fiction of course was that the Queen was part of this insofar as she signed legislation.  But no monarch has vetoed legislation since 1708, and no one believes (save the author of the excellent play Charles III) that any monarch will try to reinvigorate this practice.  “Direct democracy” of the type we stereotypically associate with California was anathema.  As with the Madisonian vision of the national US constitution, it was all representative democracy.  And the Brits never got tangled up in the metaphysics of “popular sovereignty,” as Madison had to do (see especially Federalist 63). 
To be sure, there is some precedent for referenda in the UK, beginning with the 1975 referendum on joining the EU and then a 2011 vote on whether to abandon the dreadful practice of first-past-the-post single member districts.  (Alas, it lost, placing the US and the UK in a tie for the worst voting systems of any major Western countries—but I digress.)  But, as is the way with Brits, there was little by way of a worked-out theory.  Was parliamentary sovereignty really being abandoned in favor of a more robust popular sovereignty?  Can the truly sovereign public vote if and only if the Parliament takes the lead and authorizes a referendum, as was true with Brexit?  Or, as in California (and Maine and Ohio, among other American states), can the popular sovereign in effect wrest control away from the legislature--now conceived as consisting only of the mere agents of their principles, i.e., the voting public--through some process of initiative and referendum?  In Maine and Ohio, the electorate can, by petition, place laws passed by state legislatures (and signed by the governor) on the ballot for what I call “citizen review” (instead of “judicial review,” limited to questions of constitutionality rather than wisdom or conformity with the wishes of the true sovereign—i.e., the public.) 

In California, of course, the electorate can bring about brand new legislation and even constitutional amendments.  However, t's worth noting that the California Supreme Court has notably held, in Raven v. Dukmajian, that the initiative and referendum procedure is unavailing if proposed changes would be truly transformative.  In that case, the principle of “republican government” apparently requires that the legislature be able to engage in collective deliberation.  I.e., even in California, “popular sovereignty” is limited, certainly in theory and even, on at least one notable occasion, in practice.  I 
I think there’s a lot to be said for these different forms of direct democracy as a complement to our insistence on representative democracy at the national level.  But, the point is that decisions on how best to design a constitutional order, including the mixture of "representative" and "direct" democracy, requires extended and engaged discussion   The Brits stumbled along without, so far as I can see, anything that merits the term.  Mark Graber has just published a typically excellent piece on constitution-drafting in American high schools:   There is likely to be more debate about drafting a constitution for Madison High than there was with regard to the actual mechanics and implications of the Brexit vote.   
            So then comes along David Cameron, surely the most inept British "leader” since George III.  That is, George III and Lord North provoked a Revolution (or, in fact, a secessionist movement from the British Empire) that was completely unnecessary if only they had displayed any capacity for pragmatic accommodation following the Boston Tea Party.  Interestingly enough, the central theoretical issue was parliamentary sovereignty, rejected by the Americans and insisted upon by his Majesty King George III even though the colonists were delighted to pledge continued loyalty to him so long as he (or, more to the point, Parliament) really didn’t insist on running things in America.  Today we call this the British Commonwealth and think of Canada, Australia, and New Zealand, all of whom, quite inexplicably from an American perspective, profess undying devotion to her Majesty Queen Elizabeth II, who otherwise plays no role whatsoever in the political affairs of her loyal subjects.  Cameron thought it would solve his problems within the Tory coalition if he agreed to a referendum on continued membership in the EU, never imagining, of course, that he would lose.  Surprise, surprise.
            But what was the status of the referendum?  It was simply advisory.  There appears, on the surface at least, no plausible argument that Parliament is legally obligated to accept the advice.  That’s the difference between a binding referendum and a merely advisory one.  Moreover, as is now widely recognized, one can scarcely view the 52% of those voting for exit as either fully informed or, more to the point, a strong majority.  As to the first, it is now crystal clear that many of the arguments made for exit were in consummate bad faith, offered by opportunistic charlatans.  But, hey, what's politics without charlatans?  So then we turn to the sanctity of the 52%.  It is, to be sure, a majority, and were there a British Constitution saying that a simple majority is entitled to make binding decisions, come what may, then that would be that.  But, as we are often taught, there is no canonical written British Constitution, and I’d be quite stunned if people who know more about the conventions that make up that constitution than I do would say that a one vote margin is enough to create a binding obligation, even for an advisory referendum, on the part of the members of Parliament, even if, no doubt, a one-vote victory in Parliament is enough to constitute a binding law within the UK.  Why would Parliamentary opinion ever differ from the majority opinion of the UK?  Putting the various vagaries of electoral systems to one side, so that the UK is regularly governed by parliamentary majorities who in no plausible sense "represent" majority opinion, there is also the fact that Edmund  Burke is regarded as a role model by some with regard to the duty of the legislator to be something other than the mirror of his/her constituents if the latter's views are deemed contrary to some overarching view of the public interest or common good.  But Cameron and other Tories seem to be behaving as if Edmund Burke had never lived and that members of Parliament are simply expected to mirror the views of their constituents, however ill-informed or potentially dangerous. 
            One might think that the proper response to Brexit, given that almost no one seems eager to follow the actual rules and to invoke Article 50 that triggers the divorce, is to vote a fully deserved no-confidence in the current government and move to a brand new election, in which we could find out, with utter clarity, who supports Brexit and who does not.  Perhaps the winners would be a potential grand coalition of Europeanist Tories and Labourites claiming a mandate to keep Britain in the EU.  If, on the other hand, the anti-European crowd wins, then there will be a more genuine mandate for that view.
            I note, for what it is worth, that the Canadian Supreme Court, when authoring its notable decision on Quebec secession, said that Canada would indeed be under a duty to negotiate with Quebec over the terms of secession if two things were true:  First, a referendum would have to be held that clearly set out the central proposition at issue.  (Perhaps the Brexit vote complied with that:  “Leave” or “remain” does seem quite clear, at least from one perspective.)  But the opinion rejected what might be called “simple democracy.”  I.e., anything so freighted for the entire Canadian union required some supermajority, the actual dimensions of which were left unexpressed by the Canadian Court.  But consider that the US requires (I think unwisely) three-quarters of the states to amend the Constitution or, for that matter, 2/3 of the Senate to ratify a treaty.  I obviously believe the US constitution to be outrageously anti-democratic, so I’m not prepared to defend all of its supermajoritarian features.  But I’ve never described myself as a “pure majoritarian.”  We have to try to delineate the “Goldilocks points” between “pure majority rule” (and the ubiquitous fear of “tyranny of the majority”) and such limits on majority rule as lead, in effect, to what we have in the U.S., which is a tyranny of the minorities benefitted by the status quo that we seem unable to escape.
            The current British ruling class seems totally feckless, not only in terms of basic ability to engage in sagacious politics, but to theorize their way out of a paper bag with regard to the meaning of “democracy” in the modern world.  I should think that Eton would be hanging its head in shame at contributing Cameron and Johnson to the UK ruling elite.  (Perhaps Wharton should be doing the same vis-à-vis Donald Trump!) Quite obviously, if the UK does choose to exit the EU, it is altogether likely that the UK itself will be destroyed via Scottish and possibly even Northern Irish secession, given that both are far better off in the EU than, in effect, ruled by "little Englanders" who would be in full control of a post-EU UK.
            The Labour Party, of course, presents its own fascinating dilemmas.  Its parliamentary “leader” is completely and thoroughly repudiated by those he professes to lead in Parliament.  One might think that as an honorable man, he should resign.  But I gather he wants to rely on the support he may continue to possess from “members” of the Party, who by paying three pounds were entitled to vote in the leadership elections last year.  In both the UK and the US, we need to have serious discussions about what, if anything, it means to be a “member” of a political party and, consequently, who gets to choose those who profess to lead in the name of that party.  Donald Trump has engaged in a hostile takeover of the GOP.  And Bernie Sanders has no apparent loyalty to the Democratic Party; in announcing that he will "vote for" but, apparently, at least not yet "endorse," Hillary Clinton, he is no better than those pathetic Republicans who say that they will “vote for” Donald Trump but not “endorse him.”    

            Never has there been a more exciting time to be a political scientist, either at home or abroad.  But, of course, was are all aware of the alleged Chinese curse about living in interesting (or exciting) times.

Comments:

Majority rule is always great, as long as the majority agrees with me.
 

Is there a counter-curse about dying in interesting times? I'd like to find out how it ends before I do. Looking back 85+ years, there have been many interesting times for me, America and the world. I survived the 1968 presidential election that gave us Richard Nixon, who made nice with China. Perhaps China cursed Nixon. And the undemocratic Constitution did its work then.

Nice post, Sandy. I enjoy your poli-sci views as well as on law. As to Brexit, Colin Powell's Pottery Barn rule came to mind, modified: "If you Brexit, you own it." (Now I have to figure who "you" and "it" are. David and Boris won' take my calls.)

Sandy, I expect you may be mulling over a potential secession effort by Texas to post on, which might moot Fisher II.
 

There's no good argument that the referendum is binding as a matter of law, but there's no good argument that it isn't binding as a matter of democratic theory.

The government is an agent of the people, delegated power. An agent may exercise delegated power as the agent thinks in the best interest of those he is agent of, but if he actually asks those he is agent of about a particular exercise, he is obligated to either follow their answer, or resign the position of trust he's been given.

Because he IS just an agent, not the sovereign itself.

The basic problem here is that one occasionally comes to circumstances where representative democracy doesn't work, because the process, (Including the informal parts.) determines that everybody the people will get a chance to vote for disagrees with the majority. In these cases referenda are the only way for the people to reassert control.

Because of this, your suggestion for the referendum to be treated as just advisory, and to hold new elections, misses the point. The new elections will likely be as broken as the old.
 

Interesting discussion. Perhaps the fact it is "across the pond" let SL be a bit less stressful than some of his posts suggest he is. Have a happy 4th all.

 

Brett, your argument might be correct in the US context (for a contrary view, consider Federalist 10), but it's not in the British context. As Prof. Levinson notes, in Britain sovereignty rests in Parliament, not in "the people". Given that understanding of sovereignty, the referendum wasn't binding either as a matter of law or as a matter of theory.
 

So Brett's position is that a republican form of government is as agent for the people? The people have the power of the vote. But then the elected official has a term in which to serve. The people can vote out an official running for reelection. But while in office the people are limited regarding the elected official. Should the elected official perform pursuant to daily public polling of constituents? The law of principle and agent does not govern constitutional republican form of government. Some at this Blog have suggested as an alternative to representative democracy that doesn't work "armed revolution."

The Brexit vote to leave was 52-48%. Press reports that promptly followed voiced concerns of Leavers with the result, for various reasons, expressing remorse.

As to sovereignty being in the people in America, does that mean that each person is sovereign individually, but must succumb to a majority's will on any matter? Let's hear from the libertarians, anarcho and otherwise.
 

Mark, if the British government is going to insist on that view of the matter, it's long since time the British people change their mind about it. By force, if necessary.
 

OFF TOPIC (but this is a long weekend):

I wonder if Sandy is in accord with an earlier post at this Blog headlined:

"Tuesday, June 21, 2016
Samuel Alito Channels Charles Beard (and maybe Sandy Levinson)
Mark Graber"

Comments were not accommodated but I did note my curiosity at a Mark Tushnet post that did, off topic of course..


 

Brett's suggested response to Mark Field might spark an uncivil civil war.
 

I didn't know Brett was such a fan of the people as sovereign. I took him to be more of a states as sovereign kind of guy. I for one think the people ought to be sovereign rather than legislative bodies, whether they be Parliament or state legislatures.
 

The individual is sovereign, the people being sovereign is just a sad, but presently necessary, approximation of this.

I tend to favor state governments over the federal on the basis of subsidiarity, and on the basis of that being baked into the Constitution.
 

I think your argument has an internal contradiction in it, Brett. If the people of Britain think that Parliamentary sovereignty is correct -- and that's been the rule for roughly 300 years now -- then even under your view of sovereignty, that would perforce be the rule in Britain. Given how long that's been the stated rule, I don't see any reason to believe that the people there disagree with it.
 

One of the first things "baked" into the Constitution is "We the People ... "It's not "I the Individual, ...." It's a communitarian principle of the People of the United States, not libertarian. But what is presently sad but necessary to Brett would change in the future to the individual as sovereign? How and under what constitutional provision, or does he have in mind an extra-constitutional course in mind? Brett needs a little oven for his half-baked concepts. Subsidiarity may have been baked into the Articles of Confederation but this changed with the 1787 Constitution, especially as later amended by the Reconstruction Amendments.
 

"the basis of subsidiarity"

Justice Breyer talks about this in his writings. Gets to a different place than Brett. As does, as Mark Field has explained, IMHO the Constitution in various cases.

Baking can be subjective though.
 

As to Shag's latest comment, reminds me of this:

"We hold these truths to be self-evident:

That all people are created equal and interdependent; that all life on this planet exists interdependently; that the future of all people requires that they live with respect for one another and for this earth.

That all people are endowed by their very humanity with certain universal, inalienable, and indivisible rights; that among these rights are the rights to life, liberty, clean air, clean water, food, shelter, consensual intimacy, education, health care, political participation, cultural expression, peace, justice and the pursuit of happiness."

- DECLARATION OF INTERDEPENDENCE

https://zcomm.org/znetarticle/declaration-of-interdependence-by-women-of-color-resource-center/

The DOI itself notes:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

The Constitution increased the power of the federal government to advance the ends of the Preamble, holding that certain things were beyond the power of the states to adequately handle. Post-Civil War amendments deemed more areas warranted here.

As Sandy Levinson has in depth discussed, the Constitution very well might be flawed. It is an imperfect compromise that has been amended 27 times (if sometimes in chunks). But, sometimes there appears to be an attempt to put a round peg in a square hole to fit beliefs to a sort of "sacred text."
 

"The individual is sovereign, the people being sovereign is just a sad, but presently necessary, approximation of this. "

That doesn't seem quite right. You've said many times here you hate the 17th Amendment, which puts the power of selection of Senators in the hands of the individual people, rather than professional state politicians.
 

"Consistency, thy name is not Brett." Brett may have a memory problem as to positions he has taken at this Blog in the past and his Humpty-Dumptiness. Brett has demonstrated devolving.
 

"The Constitution increased the power of the federal government to advance the ends of the Preamble, holding that certain things were beyond the power of the states to adequately handle. Post-Civil War amendments deemed more areas warranted here."

It's true that the Constitution increased the power of the federal government relative to the states, and absolutely... To a point which would today be dismissed as near anarchy. The Civil war amendments increased it still further, but with limited application.

Things didn't really go wrong in that regard until the 17th amendment and FDR's realization that you could remove the Constitution as a check on federal power by staffing the Supreme court with people who didn't think it should be limited, and who would 'interpret' it so that it didn't limit that power anymore.

"That doesn't seem quite right. You've said many times here you hate the 17th Amendment, which puts the power of selection of Senators in the hands of the individual people, rather than professional state politicians."

The Founders explicitly attempted to limit power, by dividing it, and setting one level and branch of government against another. The 17th amendment defeated this feature of the Constitution, by taking away the last way the states had to check the growth of federal power. Just as the growth of the administrative state, Bart's bete noire, defeated it by moving most of Congress' legislative power into the Executive branch.

You have to view a constitution as a design for a machine, and machines need negative feedback. The 17th amendment removed a major source of that from our constitutional design.

 

"The 17th amendment defeated this feature of the Constitution, by taking away the last way the states had to check the growth of federal power."

That's only if you think the states, or rather the people in them, are best represented by an elite, or by the people themselves. I think the latter.
 

"the last way the states had to check the growth of federal power."

There's very little to the federal government that's not controlled by 'the states' (or rather the people in them). All of Congress is chosen at the state (or state district) level. The President is chosen by state electors. Even federal judges are usually from the state or circuit they serve on, with the local Senators having a great deal of power in their selection.

The 17th Amendment haters remind of me of Bart, they don't want to think that maybe the people in the various states knowingly wanted and chose most of the aspects of the federal we have today, so there must be something else to blame, something like the 17th Amendment. That this flies in the face of their usual 'anti-elite' stance doesn't seem to register.
 

Happy Independence Day!

But it's been a little sad for me this morning as I surf the Internet as a daily morning habit but feel the need to interrupt my tour to mention some items on Independence Day that connect with Sandy and his post.

1. Dylan Matthews, at Vox: "3 reasons the American Revolution was a mistake." The reasons: Slavery, American indians, British parliamentary government. A link is available at Daily Kos.

2. Robert G. Parkinson, at NYTimes: "Did a Fear of Slave Revolts Drive American Independence?"

Joe in a comment addressed portions of the Declaration of Independence that should be kept in mind in reading these articles. " What ifs" are always a problem. But these articles contain some sobering thoughts on this day.

Sandy is not mentioned in these articles but some of the points he has raised in the past few years seem reflected, including the current post on Brexit, although Brexit is not mentioned in these articles. Perhaps Sandy has read these articles and may wish to post on them, relating his views thereon. I have certain views but will reserve them for later, so those interested in reading these articles will not be persuaded - or dissuaded - by them.

Adding to my discomfort this morning is a review of Jean Smith's new book on George W in the NYTimes. We've had a lot of exchanges at this Blog on George W; Smith is highly critical of George W and doesn't put the blame on Cheney. The reviewer, but not the author, makes a comparison of George W and Trump.

Frankly, I'm a little depressed at the moment. But I'll be better on the fifth with my copy of Garry Trudeau's "Yuge! 30 years of Doonesbury on Trump" - and spiritually as well. (I don't drink when I'm depressed.)
 

As to "not quite right," one factor is that Brett is working within the imperfections of IRL, so his conservative (self-labelled) approach regarding various things is a compromise. At times, it seems more, but regardless, there's that.

The 17A didn't "take away" all power to limit the federal government and merely appointing senators indirectly (which was on the way out anyway -- basically, you would have to force the people to continue the old method, the trend more direct democracy with the legislature going along with the people ala pledged electors in the Electoral College) was of limited value there. The Founders put in place a range of checks and balances. Taking one away in part didn't end things.

===

Hopefully it gets better for Shag. Over the weekend, there was an interesting book discussion (CSPAN has it) on the "First Congress," including about how one thing they fought for was politics. Messy messy politics. As Franklin noted in "1776," we aren't demigods. It's messy, but we try to do the best we can.

http://www.c-span.org/video/?410846-1/george-washington-first-congress
 

FDR's realization that you could remove the Constitution as a check on federal power by staffing the Supreme court with people who didn't think it should be limited, and who would 'interpret' it so that it didn't limit that power anymore.

Or, his understanding (matched by the people who voted for him & those who confirmed the judges) that it in various cases the judges were limiting power wrongly. In some cases, this involved restraining local majorities. This was in itself a wrong use of federal power in FDR et. al.'s eyes, which Brett here supports. It's complicated, huh?

The justice did limit national power in various ways, including FDR/Truman appointees. The Steel Seizure Cases and various checks on the Red Scare that limited legislative and executive power here immediately coming to mind. Perhaps, for certain conservatives this was less important than certain applications of the Commerce Power (though given some of Brett's comments, even the Four Horsemen probably went too far for him), but ymmv.


 

Brett's:

"You have to view a constitution as a design for a machine, and machines need negative feedback. The 17th amendment removed a major source of that from our constitutional design."

makes an attempt to incorporate his engineering training into the Constitution. But Brett ignores that the state legislatures were political "machines" that had become quite corrupt. The direct vote by individuals in the states overcame such corrupt political "machines" by means of democratic "negative feedback." And that was a positive.

So, has Brett responded to the challenges of his claim of individual sovereignty uber sovereignty of the people, given his inconsistencies pointed out by Mr. W? No, Brett just does another HUMPTY-DUMPTY.
 

If the Constitution is a "machine" (I doubt it), it's one built on compromises in its fundamentals by people who disagreed very strongly about the right way to build it. Not every feature is both essential and perfect.
 

Does originalism foster/favor a robotic Constitution?

By the Bybee [expletives deleted], over at the Originalism Blog Mike (I'm not Rappaport) Ramsey has a brief but interesting post on the DOI and its impact on interpreting/construing the Constitution.
 

I'm inclined to think Mr. Ramsey is a bit too dismissive.

Charles Black Jr.'s last book put the DOI on a higher plane in applying the Constitution. See, e.g., this review:

https://legallegacy.wordpress.com/2009/06/22/review-of-a-new-birth-of-freedom-by-charles-l-black-jr/

The "just one among many" line at least. Limited value it might have, but it has some special force in understanding the meaning and content of the Constitution including the 9A. Various justices have referenced the DOI specifically, including Justice Thomas:

https://www.law.cornell.edu/supremecourt/text/515/200#writing-USSC_CR_0515_0200_ZC

and Justice Stevens

https://www.law.cornell.edu/supct/html/88-1503.ZD2.html

Well, it's something for which there is a lot of debate.

To add to my recent comment, the expanding national government per the needs of the time with support of the people within the proper contours of the Constitution was going to come with or without the 17A. The people supported it and would have picked state legislators (who pre-17A would pick the U.S. senators) that supported it as well. If national power is a concern, the 17A is a misguided white whale.
 

Further re: my 10:32 AM comment, a current direction of the New Originalism is reflected in the June 22, 2016 post of Lawrence Solan "The Corpus and the Constitution. It concerns a linguistic project being under taken at Brigham Young University to address original public meaning (the New Originalism) at various points in time in the history of the Constitution and its Amendments. Randy Barnett had an article on the original public meaning of the Commerce Clause involving his exhaustive reviews of extensive writings in the timeframe of the 1787 Constitution. Others have been developing and utilizing Computer Assisted Research Techniques (CART) to assist in determining original public meaning. Perhaps the goal is to eventually be able to push keys and come up with original public meaning. I don't know if linguists outside of BYU are extensively involved. When Brett referred to a machine, that triggered my question:

"Does originalism foster/favor a robotic Constitution?"

My concern is with "Garbage in, garbage out" such that consideration has to be given to the political biases of those involved with all of these projects, especially constitutional scholars

 

This comment has been removed by the author.
 

This comment has been removed by the author.
 

Before discussing the proper constitutional form of government, we need to discuss the purpose of that government.

Sandy, what is the primary purpose of your preferred government: (1) protect individual liberty, (2) enact the will of a popular majority of the citizenry, or (3) enacting your preferred policies?

I obviously believe the US constitution to be outrageously anti-democratic, so I’m not prepared to defend all of its supermajoritarian features. But I’ve never described myself as a “pure majoritarian.” We have to try to delineate the “Goldilocks points” between “pure majority rule” (and the ubiquitous fear of “tyranny of the majority”) and such limits on majority rule as lead, in effect, to what we have here, which is a tyranny of the minorities benefitted by the status quo that we seem unable to escape.

A government cannot effectively protect individual liberty without express limits on government power and/or super-majoritarian rule. All citizens benefit from a general protection of individual liberty and a system where minorities of the citizenry equally enjoy in that liberty is the anti-thesis of tyranny.

But what was the status of the referendum? It was simply advisory. There is no plausible argument, I think, that Parliament is legally obligated to accept the advice. That’s the difference between a binding referendum and a merely advisory one. Moreover, as is now widely recognized, one can scarcely view the 52% of those voting for exit as either fully informed or, more to the point, a strong majority. It is, to be sure, a majority, and were there a British Constitution saying that a simple majority is entitled to make binding decisions, come what may, then that would be that. But, as we are often taught, there is no canonical written British Constitution, and I’d be quite stunned if people who know more about the conventions that make up that constitution than I do would say that a one vote margin is enough to create a binding obligation, even for an advisory referendum, on the part of the members of Parliament. It is as if Edmund Burke had never lived and that members of Parliament are simply expected to mirror the views of their constituents, however ill-informed or potentially dangerous.

Despite your strong and ongoing objection to our Constitution's super-majoritarian and limited power provisions as "outrageously anti-democratic," you do not appear to have any love for unlimited majoritarian rule when a "uninformed and potentially dangerous" majority vote against your preferred policy.
 

The current British ruling class seems totally feckless, not only in terms of basic ability to engage in sagacious politics, but to theorize theorize their way out of a paper bag with regard to the meaning of “democracy” in the modern world.

Like our political establishments, the British political establishment is dominated by a self-segregated and rather aristocratic technocracy (what I call the Credentialed Caste). This technocracy is fully invested in the EU, an unworkable hybrid of bureaucratic central planning and a confederacy designed, run and largely supported by technocrats and politically connected and benefited large businesses.

The problem facing the elected Tory and Labour technocrats is that a majority of their English and Welsh constituents outside of London do not share the technocracy's concerns and oppose EU misgovernance. These MPs have no choice but to straddle the fence of fecklessness. In this, they resemble our Republican establishment.

Quite obviously, if the UK does choose to exit the EU, it is altogether likely that the UK itself will be destroyed via Scottish and possibly even Northern Irish secession, given that both are far better off in the EU than, in effect, ruled by "little Englanders" who would be in full control of a post-EU UK.

Once proud Scotland which epitomized the protestant work ethic is now a welfare state. If the British technocracy submits to the will of the Brexit majority, the Scots will have to weigh whether they will lose more transfer payments from leaving England (which is why the last independence initiative failed) or from leaving the EU.

Northern Ireland cannot exist on its own and would have to weigh staying with England or joining the Catholic south to stay in the EU.

I suspect that both Scotland and Northern Ireland will stay in the UK after judging that the English money inflow is larger and more reliable than German and French money.
 

So to follow up on my 11:57 AM commnt, after posting it I had lunch with a re-run of Friday's Charlie Rose. The first half was with a guest with expertise in the genome, discussing all the things than can be accomplished.with genome data. What popped in my mind was the term Constitutional Genome Project to describe the direction of the New Originalism I discussed in that comment. The BYU project involves linguists. I don't know the extent to which legal scholars are involved. But let's add historians and whether they are involved in the project. Recall that in Heller (5-4) Justice Scalia did not directly address the briefs of historians and linguist - and used bad originalism, including severe critiques from conservative legal scholars particularly upset with Scalia's dicta. I have yet to note commentary on the project other than Lawrence Solan's post at this Blog. Our holst Jack Balkin is listed in the ranks of New Originalists and might provide a post with his views.

Meantime, back to our own Gullible's Brexit lecturing of Sandy and what he suspects about both Scotland and Northern Ireland. [If being suspect, is similar to our own Gullible's views on poss for you know whom, cue to BB.]
 

These poll numbers are great news for John McCain!!!
 

I came up with this verse on Brexit the evening of the vote prior to the final results:

***

BREXIT

REMAIN or LEAVE
The EU may cleave
The Brits either way
Whatever the final say.
This tight little Isle
May simmer a long while.
With RULE BRITANNIA
Suffering EUmania.

June 23, 2016

***

After the final vote, PM Cameron announced he would step down in September and let his successor deal with Brexie; he was for REMAIN. Boris Johnson, a leader of the LEAVE thought to become the next PM, recently announced he will not be a candidate for PM. Labour leader Corbyn is being pressured to step down; he was for REMAIN. UKIP leader Lafarge has resigned, saying his work has been done as a leader of LEAVE. Post the final vote I came up with a BREXIT EUlogy that I'm reserving for now.It's time for a Monty Python revival. as their act has been stolen by Cameron, Corbyn, Johnson and Laforge.

What does this say to those who claim superiority of the parliamentary system over America's constitutional system? [We know who you are.]


 

Brett in his 6:52 AM comment, included this"

"Just as the growth of the administrative state, Bart's [aka SPAM I AM!] bete noire, defeated it by moving most of Congress' legislative power into the Executive branch."

which came to mind as I was dutifully doing my Internet rounds this morning, including at the Legal History Blog with its post "Craig on Hamburger's 'Is Administrative Law Unlawful?'" The abstract B-B-Qs Hamburger with a severe grilling, especially on English history. SPAM I AM! may offer some Hamburger Helper by reading beyond the abstract to the articles 61 pages. Perhaps Mr. W, a bete noire of SPAM I AM!, will keep this article in his quiver just in case.
 

Shag, please refrain from inserting your pet names into my own writings. They're annoying enough when you use them yourself.
 

Religion Clause Blog had one of its occasional collection of articles of interest. Found this an interesting examination of a bit of religious legal history:

http://onlinelibrary.wiley.com/doi/10.1111/jsch.12090/pdf


 

Brett, "brackets" protect whatever you think needs protection in your "own writings" - not much. But I do appreciate you're being annoyed.
 

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This comment has been removed by the author.
 

Shag:

I presume you are referring to Paul Craig's The Legitimacy of US Administrative Law and the Foundations of English Administrative Law: Setting the Historical Record Straight, which can be found here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2802784

I also presume that you have not actually read Philip Hamburger's book.

In any case, Craig is a British professor who is offering a review of English administrative law and does not "consider the fit between Hamburger’s argument and modern US administrative and constitutional law." On that topic, Craig refers his readers to:

ADRIAN VERMEULE, ‘No’, Review of Philip Hamburger, Is Administrative Law Unlawful? 93 Texas Law Review 1547 (2015); CASS R. SUNSTEIN AND ADRIAN VERMEULE, The New Coke: On the Plural Aims of Administrative Law, Supreme Court Review, forthcoming. For a response, see, Philip Hamburger, Vermeule Unbound, forthcoming.

Vermuele's insulting rant very quickly reveals that he did not read Hamburger's book for content and missed the author's excruciatingly detailed definitions of the terms used in the book. While you will enjoy the essay, Texas Law Review apparently has pretty low editorial standards.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2488724

Hamburger corrected Vermuele here, with citations to the relevant pages of the book:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2631873

The Sunstein & Vermeule essay is a generalized response to the libertarian critique of our increasingly lawless government and Justice Thomas's adoption of some of their arguments. The authors conclude by celebrating the fact that a majority of the Supreme Court still support the regulatory bureaucracy. The essay only tangentially touches on the Hamburger book.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2691181

I have added the Craig article to my reading stack. Hopefully, the Brit will improve upon the less than impressive work of the Yanks.

 

Well, in about a half hour we find out if the fix is in.

Correction: We all know the fix is in, in a half hour we find out if Comey is going along with it. Either way, the fecal matter hits the turbine at 11.
 

"We all" being Brett and Bart in this context.
 

Comey is refering the case for a prosecutorial decision to Justice. 110 emails contianed information classified at the time the enail was sent. 8 emails contained top secret materuals. Clinton attempted to destroy thousadns of official emails that were not turned over to State.

http://hotair.com/archives/2016/07/05/hmmm-fbi-director-to-meet-press-take-off-camera-questions-at-11/

 

Yup, the fix is in.
 

Yeah, the FBI is now as corrupt as the DOJ. The fix is in.
 

Comey is punting.
 

These poll numbers are GREAT news for John McCain!11
 

After the Libertarian Party (but like the NRA, Brett reminds us, they are kind of leftie these days, you know?) nominee said:

"I'm not a stone-thrower when it comes to Hillary Clinton and her emails and her server," he said. "I don't think there has been criminal intent on Hillary Clinton's part. I don't see an indictment."

http://www.cnn.com/2016/07/03/politics/libertarian-gary-johnson-cnn-state-of-the-union-interview/

The United States Deputy Attorney General under President George W. Bush's administration (and head of the FBI now) now determines "no reasonable prosecutor" would bring charges against Clinton in e-mail probe. Did say she was "extremely careless." I figure this was just part of "the fix" and we can't take that part seriously. /snark

Too bad the alternative is Donald Trump, who was "extremely careless" on lots of things without having experience in state and federal governments, including as senator and Secretary of State along with a slew of other problems.

Looking past biased singular focus on one individual, there has been some good coverage on how handling data and information in the federal government as a whole has had various serious issues. Nice that Brett only today thinks the FBI is "as corrupt as the DOJ." You know, good run and all.

We need more use of the federal criminal power. Too little government these days.
 

I find it shocking that Comey failed to mention her emails to Vince Foster about Benghazi.
 

Comey laid out the case for violation of at least three to four statutes, gutted the Clinton defense that her emails were not classified at the time, then claimed that he could not recommend criminal prosecution?

Really?

Laws apparently are for the little people, not our ruling class.
 

We're all living in a banana republic today. The difference is, you're happy about it, because it looks like the boss man will be your guy.

But you're still living in a banana republic, where the people running the government are above the law, and have nothing but contempt for it. So the joke's on you. Some day the beast will turn on you, and I'll laugh as you complain about it. Because today you freely gave away your standing to complain.
 

Politico has Comey's money quotes:

In prosecuting similar cases, Comey noted that past instances have "involved some combination of clearly intentional and willful mishandling of classified information or vast quantities of information exposed in such a way as to support an inference of intentional misconduct or indications of disloyalty to the United States or efforts to obstruct justice."

This is a deliberate misstatement of the mens rea element of the classified materials laws. All FBI needs to prove is that Clinton "knowingly" placed classified materials in her multiple servers or to uncleared persons.

"We do not see those things here. To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions, but that's not what we're deciding now."

In other words, Clinton would at minimum be stripped of her security clearance if she was not part of our ruling class?

http://www.politico.com/story/2016/07/fbi-recommends-no-charges-against-clinton-in-email-probe-225102#ixzz4DYA65I4S
 

Good thing Hillary didn't torture anyone. Then she'd have been indicted for sure.
 

I don't really like bananas.

I support judicial review. The Obama Administration repeatedly was restrained by it and followed the dictates of the courts in multiple cases. But an example.

They are not "above the law" and exaggerated hyperbole b.s. is, if I might use a biblical reference, a "get behind me Satan" moment in this respect. Those seriously concerned about problems need to be more reality based when dealing with them.

But, hey, so glad only today my standing fell. Thought I was a lost cause in your eyes long before now.
 

Oh, come on. Comey lied his face off about the normal consequences of these acts. Hillary, based just on public information, is implicated in multiple felonies, and that's just the email end of thing, not even getting into the Clinton foundation corruption. And she's getting off scot free. You or I would be looking at hard time for a fraction of this.

If that's not above the law, what is?

I think this sums up my feelings. This government no longer has my respect. I'm going to regard myself as living in occupied territory from now on.
 

Laws apparently are for the little people, not our ruling class.
# posted by Blogger Bart DePalma : 11:45 AM


I don't recall you being this upset when Bush/Cheney and friends got away with torturing people.
 

This government no longer has my respect. I'm going to regard myself as living in occupied territory from now on.
# posted by Blogger Brett : 12:32 PM


So nothing has really changed...
 

Joe:

The Obama Administration repeatedly was restrained by it and followed the dictates of the courts in multiple cases.

The Obama regime has imposed over 24,000 pages of new regulations, among them are dozens of rewrites of or dispensations from the laws of Congress. Additionally, it has failed to prosecute multiple Administration perps.

You can count the number of times the courts have reversed these outlaw acts on one or maybe two hands. The vast majority of courts have rubber stamped these decrees.
 

Nothing except the certainty of it, BB; It is now certain that we live under a lawless government, and certain that you're happy to have it so, so long as the dictator is of your own party.

Enjoy it while you can.
 

bb: I don't recall you being this upset when Bush/Cheney and friends got away with torturing people.

Bush did not order the violation of the torture statute by employing SERE methods (used hundreds of times every year on service members) against al Qaeda.

No amount of red herring changes the facts of this outlaw regime.
 

Brett and Bart,

Did it ever occur to you that perhaps instead of the lifelong Republican James Comey, with a decades long record in federal prosecutor and law enforcement record, being in on a fix to help the presumptive Democratic Party candidate, that perhaps you two don't know all the facts or the law in this area and that that, combined with your obviously strong partisan dislike of all things Democrat, caused you to come to a wrong conclusion in this case?
 

Bush did not order the violation of the torture statute by employing SERE methods (used hundreds of times every year on service members) against al Qaeda.

# posted by Blogger Bart DePalma : 1:13 PM


Unfortunately for you, everyone knows that you're lying. You know it. We know it. So shut the fuck up.
 

It is now certain that we live under a lawless government
# posted by Blogger Brett : 1:11 PM


You weren't certain about it when Bush was torturing people?

 

I love how Bart jumps to an outlandish conclusion based on a silly right wing source at 11:14, is flatly crushed by reality a few minutes later, but without a moment of self awareness and reflection, latches onto another conclusion in an area of law he's not worked in involving a case the facts of which he's not privy to on a subject he's highly biased concerning and sees Comey's contrary conclusion as a foundation on which to scream hyperbolic charges of tyranny.

Never change, Bart, never change (I say sarcastically, but methinks this is actually Bart's daily mantra).
 

"Bush did not order the violation of the torture statute by employing SERE methods (used hundreds of times every year on service members) against al Qaeda."

So when our service member POW's were waterboarded by the Japanese in WWII they were not being tortured?
 

Mista Whiskas, did it occur to you that the AG met privately with the husband of somebody subject to a high profile criminal investigation? And then didn't recuse herself? And has now been promised the AG spot in said subject's own administration?

And you're going to pretend there's no corruption going on here?

And now Comey lays out how guilty Hillary is, and then declares that there's nothing to indict her on, anybody could commit similar acts and get off with a slap on the wrist. Which is a damned lie.

This stinks to high Heaven.
 

"And has now been promised the AG spot in said subject's own administration? "

Cite?

"And now Comey lays out how guilty Hillary is, and then declares that there's nothing to indict her on, anybody could commit similar acts and get off with a slap on the wrist. Which is a damned lie."

What a strained reading of Comey's comments. Really, am I supposed to believe that your reading of what's going on, with you having no experience in this area and no access to the facts that Comey did, over his conclusions?
 

Meantime, The Donald, the presumptuous GOP nominee, seems to be a Manchurian candidate, as there is more and more disclosure of his role as one of Putin's Puppies. In fact The Donald doesn't duck this.

And Brett talks about "lawless government," perhaps forgetting his not that long ago persona of a self-proclaimed anarcho-libertarian and 2nd A absolutist. Is it time for that alternative of "armed revolution" that our Frick and Frack have suggested? Putin aids right wingers in Europe and flatters The Donald who won't duck being called a genius by Putin. I assume The Donald's base of older undereducated white men doesn't care; make for the ducklings who followThe Donald, speaking of the dictator of Brett's party.
 

Mista Whiskas, did it occur to you that the AG met privately with the husband of somebody subject to a high profile criminal investigation?

If Bill were as nefarious and corrupt as you say, why would he choose to meet in a public location? Why not just call her on her cell phone? Or meet privately?

And now Comey lays out how guilty Hillary is, and then declares that there's nothing to indict her on

Well, to quote Comey, "In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here."

Note, too, that Comey's overall statements were broad enough to encompass persons other than Hillary, so it's unclear if he's speaking of her conduct, per se, or that of someone else.
 

And what's supposed to be the theory here, that Lynch meets with Bill and then she's directed to pressure Comey, who then folded? This is the same Comey who stood up to Card and Gonzalez over the NSA authorization? Come on.
 

"and Democrats close to Mrs. Clinton say she may decide to retain Ms. Lynch, the nation’s first black woman to be attorney general, who took office in April 2015." That's what is known in the trade as a "trial balloon".

The theory here is that AGs just do not meet secretly with the spouses of people who are under criminal investigation by the FBI. Is this somehow obscure? It was obvious enough that they shouldn't meet, that they went to absurd, spy thriller lengths to try to conceal it.

And the idea that people who do what Clinton did aren't normally prosecuted is laughable.
 

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Mr W:

Once again, you demonstrate that there is no level of lawlessness you will not defend.

Did it ever occur to you that perhaps instead of the lifelong Republican James Comey, with a decades long record in federal prosecutor and law enforcement record, being in on a fix to help the presumptive Democratic Party candidate, that perhaps you two don't know all the facts or the law in this area and that that, combined with your obviously strong partisan dislike of all things Democrat, caused you to come to a wrong conclusion in this case?

I very intentionally used the term "ruling class" and our "ruling class" is very much bipartisan. The GOP affiliation of the chair of the House intelligence committee did not prevent him from joining the Democrats against his own caucus to disregard evidence and whitewash the initial Benghazi investigation.

Listen to the Comey speech. He laid the evidence for an outstanding prosecution case before he caved on recommending actual prosecution.

I love how Bart jumps to an outlandish conclusion based on a silly right wing source at 11:14, is flatly crushed by reality a few minutes later, but without a moment of self awareness and reflection, latches onto another conclusion in an area of law he's not worked in involving a case the facts of which he's not privy to on a subject he's highly biased concerning and sees Comey's contrary conclusion as a foundation on which to scream hyperbolic charges of tyranny.

What conclusion at 11:14??

I gave my conclusions at 11:57 based on Comey quotes from the Democrat media source Politico. My conclusion is that Comey misrepresented the mens rea element of these laws to provide a fig leaf to decline prosecution. At one point in his speech (not in the Politico quotes), Comey claimed that there was insufficient evidence that Clinton intended to violate the classified materials laws when neither intent nor even knowledge of the law is required to prosecute these crimes.

The refusal of law enforcement to follow the evidence to enforce the law can be fairly characterized as corruption or cowardice, but not tyranny - a term you falsely attributed to my comments on this matter.
 

Like Bart says, you can read the law yourself. Comey let her off on lack of intent, when the law in question doesn't require intent. He said she was careless, and the law in question criminalizes carelessness.
 

So, again, "we all" are the killer Bs.

The rest of us will go with the lifelong Republican that is being libeled*, the variable Mr. W. and the apparent loyal Democrat/lawyer type Mark Field.** And, the current candidate for the Libertarian Party.

---

* Use the term figuratively.

** Even if his name seems suspicious. Like "Mark Twain."

 

""and Democrats close to Mrs. Clinton say she may decide to retain Ms. Lynch, the nation’s first black woman to be attorney general, who took office in April 2015."

I thought that might be your source, and wow, it really does point up a big problem of yours. You read a report of unnamed sources 'close to Mrs. Clinton' saying she '*may* decide to retain Ms. Lynch' as proof for this kind of statement "has now been promised the AG spot in said subject's own administration."

If you can willfully or carelessly misread that into what you got then it's easy to suppose you've misread the relevant law and facts in the email case.
 

"The GOP affiliation of the chair of the House intelligence committee did not prevent him from joining the Democrats against his own caucus to disregard evidence and whitewash the initial Benghazi investigation."

Again, maybe you just didn't know what you were talking about there?

"Listen to the Comey speech. He laid the evidence for an outstanding prosecution case"

You've got the same problem Brett has. That you read Comey's explicit distinction between what he found in this case and past cases prosecuted as 'evidence for an outstanding prosecution case' would be incredible if I wasn't already familiar with your terrible grasp of logic and partisan blinders. Again, if you can't read his straightforward statement correctly why should anyone listen to your reading of the relevant law and/or facts (and let's remember, this is an area of law Comey is well familiar with and you are not, and he has access to more facts than you do).


"What conclusion at 11:14?"

Blogger Bart DePalma said...
Comey is refering the case for a prosecutorial decision to Justice.

"Comey claimed that there was insufficient evidence that Clinton intended to violate the classified materials laws when neither intent nor even knowledge of the law is required to prosecute these crimes."

The law is clear that they would have to show, beyond a reasonable doubt, that she knew the information was classified and that she knew she was sending it to an unauthorized person. That's a high bar. Petraeus only got a misdemeanor plea bargain when he did something similar involving potentially many violations of the law, and he had admitted he knew the information was classified and the person unauthorized.

 

"the law in question criminalizes carelessness."

Does it? I hope you have a sounder footing for that claim than your AG one earlier...Look, you don't know what you're talking about; you don't know how to read law and you certainly have never been trained or worked in this particular law. Why would you act like you know more than a guy who has been working in federal prosecutor or law enforcement offices for several decades?
 

Yes, it's easy to suppose, and you will. Because like a lot of Democrats, all you were looking for was the least excuse to pretend she's not a criminal.

You don't really care that it's a bad excuse, you just needed an excuse. And Comey, after detailing her guilt, provided it.

Go ahead, prove me wrong: Look at the actual text of the law. Title 18, Section 793(f). There is no mens rea requirement. It criminalizes negligence. Comey states she was negligent, and then lets her off because he can't prove the intent the law deliberately makes irrelevant.
 

It's not just lifelong GOPer Comey, joe. Stewart Baker from the Volokh Conspiracy, no liberal, whose field of expertise is cyber law and security, has long said there was no criminal liability to be found here. William Jeffress, another longtime GOP lawyer, who works for James Baker's firm and represented Scooter Libby, said "there's no way in the world [prosecutors] could ever make a case" against Clinton.

But no, they're wrong and amateur sleuth legal scholars Bart and Brett, who just *happen* to be extraordinarily biased against Clinton and have a history of sloppy conclusions documented here, they're right and those fellows are just wrong. Why, it's obvious!
 

"The law is clear that they would have to show, beyond a reasonable doubt, that she knew the information was classified and that she knew she was sending it to an unauthorized person. That's a high bar."

No, it doesn't. If you are entrusted with classified information, you have an affirmative legal obligation to make sure it doesn't fall into the wrong hands.

She knew the information was classified because she was the SOS, and was supposed to be able to recognize classified information. The alternative is that she's a moron.

She had an affirmative obligation to know that people she transmitted it to were authorized. She doesn't get off the hook by simply not checking.

Like Comey, you're trying to re-write the law to make her innocent. But Congress didn't mean to make a law that you could avoid violating by just taking care not to ask somebody if they had a security clearance. They wrote a law that imposed obligations on people with security clearances.

Obligations she violated, and went to great lengths to violate. She went out of her way to NOT have a secure email address. Doing things the legal way was the DEFAULT here.
 

Since we are on a tangent anyway and Mr. W. seems to have things in control, I'm just going to toss in that I found a recent 5CA case on how machine guns are not protected by the 2A rather interesting:

http://www.huffingtonpost.com/entry/machine-guns-second-amendment-ruling_us_57769b2ee4b09b4c43c03f30?

What made me particularly go "hmm" is around p. 11 of the opinion where the conservative 5th circuit (sort of the beginning with the U.S. v. Emerson case) applies Heller in a reasonable way to split arms into two groups: militia and personal use, noting the individual right only applies to the second. Given the 2A text, this just seems unfortunate.

Heller, therefore, distinguished between two classes of weapons: (1) those that are useful in the militia or military, and (2) those that are “possessed at home” and are in “common use at the time for lawful purposes like self-defense.” See id. at 621−27 (quotation marks omitted). The individual right protected by the Second Amendment applies only to the second category of weapons, though that category at times may overlap with the first.

Personally, I think it would be best to protect the personal right to RKBA as a basic liberty (per common law) while treating the militia usage differently. The case here is of limited concern since Heller itself in dicta accepts machine guns can be banned. As this opinion itself notes, they could fit into the "dangerous and unusual" exception. But, machine guns can be useful for professional militia forces. And, there can be an "individual" right there (e.g., if gays were denied the right to be armed in them). It might even be true that if the feds totally blocked a state militia from using machine guns that were deemed necessary for professional state guard service, it could raise 2A issues.

A final interesting tidbit is a reference to the mid-1990s Supreme Court case Staples v. U.S., that decided 7-2 that required Staples "knew that his rifle had the characteristics that brought it within the statutory definition of a machinegun." A weaker standard that was applied to certain poisons and the like was rejected, in part since it was determined (Justice Ginsburg in a concurrence emphasized this) Congress recognized the broad "widespread lawful gun ownership” that would be threatened by a weaker test.

As the majority notes, unlike machine guns/grenades/etc., the average firearm was "traditionally have been widely accepted as lawful possessions." The road from here to "protected liberty" is not far. Anyway, 7-2 (and not for the first time), the rights of gun owners was protected pre-Heller.
 

BD: "the law in question criminalizes carelessness."

Mr. W: Does it? I hope you have a sounder footing for that claim than your AG one earlier...


The mens rea for 18 U.S.C. § 793(f) is gross negligence. Lawyers and lay people who can read the law are having a great deal of fun attempting to determine the difference between Comey's characterization of Clinton's malfeasance as “extremely careless” and the criminal standard of "gross negligence."

Gross means extreme and negligence is carelessness.

Tomato, To-mah-to.

Mr. W: Look, you don't know what you're talking about; you don't know how to read law and you certainly have never been trained or worked in this particular law. Why would you act like you know more than a guy who has been working in federal prosecutor or law enforcement offices for several decades?.

If we are going to play your citation to authority games, my opinion is the final word here because I am the only one here who has actually prosecuted criminal charges and the only one who actually had to follow these laws as an intelligence officer.

However, you do not need to accept my opinion.

The damned law speaks for itself.
 

Like opponents of Trump, it's just a sample, but good find there Mr. W.
 

"Go ahead, prove me wrong: Look at the actual text of the law. Title 18, Section 793(f). There is no mens rea requirement."

Brett, when you say things like this you really destroy any credibility you have in this area. Anyone who has actually studied law knows that statutes without mens rea are disfavored and rare, especially so in criminal law, and even more so in criminal offenses where serious incarceration time is possible. This is really as stupid as someone watching an NFL game and saying 'everyone knows that was a foul ball!'

The law has an explicit mens rea of 'gross negligence,' which requires "“A lack of care that demonstrates reckless disregard for the safety or lives of others, which is so great it appears to be a conscious violation of other people’s rights to safety. It is more than simple inadvertence….” Carelessness falls far short of this.

But it's worse for you! SCOTUS ruled in a case using this law "requir(es) intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation" and that it "requires those prosecuted to have acted in bad faith.” https://supreme.justia.com/cases/federal/us/312/19/case.html

Look, you obviously and literally don't know what you're talking about, so why keep opining as if you do?
 

"The law is clear that they would have to show, beyond a reasonable doubt, that she knew the information was classified and that she knew she was sending it to an unauthorized person. That's a high bar."

The bar is easily navigable for any competent prosecutor.

Charge Clinton with one count of each applicable provision of the US Code covering all of Clinton's emails during her tenure as SecState.

Offer the testimony of Clinton's assistants that she conducted all of her official email communication through her private server.

Offer the non-disclosure statement Clinton signed explaining the classification laws and rules and her responsibilities under them.

Offer video of all of the times Clinton publicly admitted that she knew and applied all the classification rules.If the FBI and the Justice prosecutor was smart, they had Clinton admit during her interview that she knew that some of her official business was classified.

Offer evidence that, in fact, over 100 of the emails were classified at the time they were sent and stored.

Offer evidence concerning the email storage in all the servers and the people with access to those servers.

A jury would be back in less than an hour with a guilty verdict.

 

Brett:

Mens rea refers to the mental element of a criminal charge. There are a range of mental elements ranging from knowledge to intent. Gross negligence is one of the lesser mens rea.



 

"Gross means extreme and negligence is carelessness."

It's comments like this that actually make me doubt your professed backstory of being a lawyer. Or even someone who is capable of reading a dictionary.

Gross means something closer to 'total' (as in 'gross receipts') or involving a moral lacking as in 'glaringly noticeable usually because of inexcusable badness or objectionableness.'

http://www.merriam-webster.com/dictionary/gross

Extreme means 'existing in a high degree.'

I can't help you if, as a self professed lawyer, you can't see the room between those.

"If we are going to play your citation to authority games, my opinion is the final word"

Er, no, if I'm going to play a citation to authority it would be to someone who has worked in this area of law like the several people I named who said this is not something a reasonable prosecutor would pursue. You've worked in law, Shaq has worked in law, Mark Field has worked in law, none of you, to my knowledge has worked in this area, so none of you, with all due respect to all involved would be relevant authorities. But Comey, Baker, Jeffress, Tomkins, etc., would be.

"The damned law speaks for itself."

Indeed, but some people only hear what they want, not what's said, especially when they're hopelessly partisan and shown to be sloppy in the area in the past. I mean, Jesus Bart, you fell on your face relying on a silly reading of a silly source ten minutes before you started pontificating on this issue which is much, much more complex. Stop digging!
 

Bart, your list of what you'd offer as prosecutor is hilarious. Which one would demonstrate "A lack of care that demonstrates reckless disregard for the safety or lives of others, which is so great it appears to be a conscious violation of other people’s rights to safety" on Clinton's part and "intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation?" Or did you not know the latter was required? What else do you think you might not know that's important here?
 

Mr. W: The law has an explicit mens rea of 'gross negligence,' which requires "“A lack of care that demonstrates reckless disregard for the safety or lives of others, which is so great it appears to be a conscious violation of other people’s rights to safety. It is more than simple inadvertence….” Carelessness falls far short of this.

You are cutting and pasting the definition of gross negligence used in civil tort cases.

Gross negligence is complete indifference to the legal duty to secure classified materials. It is a higher standard than simple negligence, but a lesser standard than the intent, willful and reckless standards Comey offered.

See Black's Law Dictionary.
 

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"Shaq" is the basketball player.

Shag from Brookline. I saw Mr. W. use "q" there before. Might be a slip.
 

Mr. W:

I was unable to find a form federal criminal jury instruction for "gross negligence" applied to the classified materials laws, but here is the CO criminal jury instruction: "through a gross deviation from the standard of care a reasonable person would exercise, the defendant fails to perceive a substantial and unjustifiable risk that a result will occur or a circumstance exists."

CO law is largely based on federal law so Justice likely uses a similar jury instruction.
 

Joe, I'm more of a dribbler and never could dunk. And I have never in my practice dealt in this area of the law under discussion. But it's beyond gross negligence for Brett, who's portraying an un-civil engineer, to assert this:

"The damned law speaks for itself."

Brett might visit a law library to note the volumes of federal and state court decisions over the years that took courts to determine what the law is. Brett might check the specific statute in issue in the U.S. Code Annotated (USCA) and check for cases involving the application of that statute. And if there are no annotations close to the situation in issue, then make a search for comparable statutes to consider how they have been applies.

In law school, first year students might make a statement similar to that of Brett. But they quickly learn that the law does not speak for itself. And those that don't learn, assuming they make it out of law school and get admitted to a (non-spirits) bar will learn the hard way when they lose a case they thought was a slam dunk.

Brett is quite a simpletonian on the law, especially as he might have learned back when he was going through a divorce. Brett can be excused as he is an engineer and not trained in the law. And the fact that one is trained in the law doesn't mean that that person is skilled in all areas of the law. That's the point made by Mr. W quite well. As for SPAM I AM! what are his credentials in this area of the law? Does his rural DUI law practice qualify him in this specialized area? On this thread what he is doing by way of what he calls legal research is Googling by the seat of his pants. SPAM I AM! is not objective. I wonder if he plans to bill clients for the hours he has spent on this thread today as well as his Internet searches for his comments.

By the Bybee [expletives deleted], determining what are the "facts" to which the law is to be applied is not a simple matter. Quite often what may be evidence may be disputed.

I'm beginning to suspect that SPAM I AM! and Brett are paid trolls at this Blog, on piecework., with all the time they spend at this Blog with their open and notorious biases.

Now let's focus on The Donald as one of Putin's Puppies. Recall candidate Reagan's dealings with Iran on the hostages for his political purposes.
:


 

This comment has been removed by the author.
 

I was unable to find a form federal criminal jury instruction for "gross negligence" applied to the classified materials laws"

Jesus, Bart, look at you. You literally don't know what you're talking about. You're admittedly ignorant of what the mens rea requires in this case by your admission (what else might you not know that could be important?), yet you're willing to impugn the integrity of a man who has worked in the field several decades, has devoted himself to serving your party and country and has shown considerable integrity in resisting pressure from superiors in the past, slandering him that he must be corrupt because he's come to a conclusion that differs from your admittedly ignorant one. Your partisanship has made you more than sloppy, it's made you reckless in your statements and conclusions.

 

has shown considerable integrity in resisting pressure from superiors in the past

# posted by Blogger Mista Whiskas : 5:56 PM


In Blankshot's defense, that integrity was in opposition to torturing people, which Bart supported. So it doesn't count as integrity.

 

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Mr. W:

Hero, you are quoting general dictionaries and almost certainly did not know that there might be a jury instruction defining "gross negligence" until I gave you a clue.

Comey did not claim that Clinton's malfeasance did not meet the definition of "gross negligence," instead he purposefully misstated the mens rea as intent, willfulness and recklessness, all of which require higher levels of proof than does "gross negligence."

I doubt that a partisan hack such as yourself will listen, but I will let former federal prosecutor Andrew McCarthy lay out for you how Comey rewrote the law:

http://www.nationalreview.com/corner/437479/fbi-rewrites-federal-law-let-hillary-hook

I might have an easier time accepting that Comey was acting in good faith if he had not first laid out the evidence for an excellent criminal prosecution. Comey's remarks were curiously like Brutus's funeral oration in Shakespeare's Julius Caesar - designed to outrage.




 

Speaking of hacks, the National Review headquarters them.
 

"almost certainly did not know that there might be a jury instruction defining "gross negligence" until I gave you a clue."

Bart, I'm not a lawyer but I did go to law school and get a law degree. Not only would I know there has to be jury instructions with gross negligence covered, but I'd know enough not to offer some state's and then pontificate on the federal meaning. In fact, I'm wondering why you didn't offer a citation for your claim about your state's definition of 'gross negligence' because what you listed looks a lot like that for 'criminal negligence.' Just admit you have no idea what federal courts would require for gross negligence to be shown in a case like this.

"instead he purposefully misstated the mens rea as intent..."

Maybe he, unlike yourself, is familiar with the caselaw about this particular provision, such as the SCOTUS case I cited stating it ""requir(es) intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation" and that it "requires those prosecuted to have acted in bad faith.”

"I will let former federal prosecutor Andrew McCarthy lay out for you how Comey rewrote the law:"

McCarthy's article is not much, it also seems unaware of the case law about scienter I cited, and he simply begs the question of whether gross negligence is met here.



 

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unaware of the case law about scienter"

sounds like there is a legal joke somewhere in there

Mark Field's approach to BP is sound but I appreciate Mr. W. taking the effort.

It informs the rest of us even if its target is a lost cause.


 

Very helpful advice in this particular post! It’s the little changes that make the largest changes. Thanks for sharing!
Run 3 | Stick Run 2 | Return Man 2
Run 2 | Stick Run | Return Man | run 3 game | run 3 unblocked

 

The NYTimes editorial on Clinton's email brouhaha includes this:

***

For at least two reasons, Mr. Comey said, this did not amount to criminal wrongdoing. First was the lack of evidence that Mrs. Clinton or her colleagues had intended to break any laws. Second, prosecutions of similar cases in the past have relied on some combination of elements that were missing in this case: the intentional mishandling of classified information, indications of disloyalty to the United States, and efforts to obstruct justice.

But Mr. Comey was clear that while these email habits weren’t criminal, Mrs. Clinton and her staff were “extremely careless in their handling of very sensitive, highly classified information.” He added that “any reasonable person” in Mrs. Clinton’s position should have known that she was playing with fire.

***

Consider examining the role of The Donald as one of Putin's Puppies on indications of disloyalty to the United States, not just The Donald's statements as a presidential candidate plus the hiring of Paul Manafort, but his earlier business efforts in Russia. Add to this The Donald's statement yesterday about how good bad old Saddam Hussein was at killing terrorists. Can The Donald be trusted, as the presumptuous GOP presidential candidate, with briefings on America's secrets? Perhaps the Donald's base of older undereducated white men have no concern with this and The Donald's other failings.

"ORANGE IS THE NEW KKK." Sheriff's star? Not according to Trump supporter David Duke.

By the Bybee [expletives deleted], who exactly were those terrorists that Saddam was good at killing as claimed by the Creamsicle?

Regarding "scienter," it is not the past pluperfect of Cialis. The case for Cialis is more difficult (e.g., harder) to make.
 

It's worth pointing out that Clinton was legally vulnerable on a number of fronts. Comey confirmed that a large number of things Hillary had said to investigators were wrong. In fact, almost certainly lies.

Comey put Martha Stewart in jail for exactly that. It didn't bother him a bit when it came to Hillary. A pity Martha didn't think to run for public office, in order to get immunity.

Comey said that she was "extremely careless", and I'd be interested in an explanation of how 'extreme carelessness" differs from "gross negligence". Having some idea of how little it takes to qualify as "gross negligence" if your last name isn't "Clinton", the difference escapes me.
 

It's interesting how by being so aggressive movement conservatives tend to get the discussion in the area of offense for them rather than defense. Consider this: if the GOP presumptive nominee were investigated by a career Democrat FBI director who then proceeded to, in a press conference, criticize the nominee but stop short of recommending any charges, wouldn't we hear howls about partisan investigators and political charges? Instead the Democrats get put in the position of defending a lifelong GOP prosecutor who did the same!
 

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Mr. W: Bart, I'm not a lawyer but I did go to law school and get a law degree. Not only would I know there has to be jury instructions with gross negligence covered, but I'd know enough not to offer some state's and then pontificate on the federal meaning.

Since nearly no law school teaches the nuts and bolts of actually trying cases like jury instructions, let me give you some background. Jury instructions are based on statutory definitions, standard instructions drafted by the judiciary or party drafted instructions accepted by courts. It is not at all unusual to borrow instructions from other jurisdictions when your jurisdiction has not addressed the issue. All jury instructions are subject to approval by the trial judge. When there is no statutory or standard judicial definition for a term as in this case, the attorneys offer suggested jury instructions with their sources to the trial court as I did here.

I found an annotated set of standard federal criminal jury instructions here, but they do not have a separate definition for gross negligence.

http://www.scd.uscourts.gov/pji/PatternJuryInstructions.pdf

In fact, I'm wondering why you didn't offer a citation for your claim about your state's definition of 'gross negligence' because what you listed looks a lot like that for 'criminal negligence.'

Gross negligence and criminal negligence are generally interchangeable terms. Depends on your jurisdiction. In CO, we use the term criminal negligence.

Generally, criminal law does not penalize standard negligence, but sometimes does penalize gross negligence, which is why gross negligence is often termed criminal negligence in the criminal law.

BD: "instead he purposefully misstated the mens rea as intent..."

Mr. W: Maybe he, unlike yourself, is familiar with the caselaw about this particular provision, such as the SCOTUS case I cited stating it ""requir(es) intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation" and that it "requires those prosecuted to have acted in bad faith.”


The Gorin case is interpreting a different provision of the Espionage Act which does not use the mens rea of gross negligence.

Once again, Comey did not claim that Clintons malfeasance did not meet the gross negligence standard nor did he cite any case law or jury instructions to support that claim.




 

Brett
According to Ballentine's Law Dictionary, 3rd edition gross negligence is "Negligence characterized by the want of even slight care. Acting, or omitting to act in a situation where there is a duty to act, not inadvertently but wilfully and intentionally with a conscious indifference to consequences so far as other persons may be affected."
 

"Gross negligence and criminal negligence are generally interchangeable terms. "

Citation for that?

"I found an annotated set of standard federal criminal jury instructions here, but they do not have a separate definition for gross negligence."

So you're pontificating from ignorance, correct? You're not sure what the federal courts would require here? Do you think Comey and his team might have more experience in this area?

"Comey did not claim that Clintons malfeasance did not meet the gross negligence standard nor did he cite any case law or jury instructions to support that claim."

Of course not in a public press conference. But he did go on to explain how this case lacked elements that other successful prosecutions under the law had.
 

Left wing leaker Glenn Greenwald notes how prosecution for violating the classified materials laws only target the little people and wishes that the Clinton standards applied to him.

https://theintercept.com/2016/07/05/washington-has-been-obsessed-with-punishing-secrecy-violations-until-hillary-clinton/


 

American Jurisprudence, 2nd edition says "'gross negligence' is the absence of the exercise of "slight care" and is the omission or commission of an act with a conscious indifference to consequences so far as other persons are concerned."

See Curley v. AMR Corp., 153 F.3d 5 (2d Cir. 1998): "Like ordinary negligence, gross negligence also involves the commission or omission of an act or duty owing by one to another. However, the act or omission must be of an aggravated character, as distinguished from the failure to exercise ordinary care. In other words, gross negligence is conduct that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing."
 

Facts not in evidence that Comey was not "bothered a bit."

His announcement if anything criticized Clinton in a way those expert in the matter (the person cited has DOJ experience) have argued was illegitimate. In part (from a Twitter comment): "Lot of chatter among ex-prosecutors on how out of line Comey's statement was. All privately of course...they all have cases before the FBI."

http://talkingpointsmemo.com/livewire/matthew-miller-comey-doj-hillary-clinton

Mr. W. et. al. (particularly those with experience in the field) has explained in detail for those honestly "interested" in the details here. The details in the Martha Stewart prosecution have a different set of facts; they are not merely fungible. And, "almost certainly lies" is (1) not shown (2) even if it was accurate, it's very hard to actually prove such things. This is why -- though it happens a lot -- lying to investigators isn't usually prosecuted. Some deemed doing so against Martha Stewart an overreach.

Comey weighed past cases, none to my understanding with the last name "Clinton," and as a range of people have determined -- many who are not big fans of the woman -- made a sound judgment here. If anything, he tossed in extraneous remarks that provided fodder for critics that treated Clinton worse in certain ways.
 

BD: "Gross negligence and criminal negligence are generally interchangeable terms. "

Mr. W: Citation for that?


Read the CO standard jury instruction for criminal negligence I provided above carefully for content.

If you want a general history of the subject, get a treatise at your local law library.

Do you think Comey and his team might have more experience in this area?

Yes. Comey's FBI prosecute the little people under the same law with FAR less evidence.

https://www.fbi.gov/sacramento/press-releases/2015/folsom-naval-reservist-is-sentenced-after-pleading-guilty-to-unauthorized-removal-and-retention-of-classified-materials

http://www.politico.com/story/2016/05/kristian-saucier-investigation-hillary-clinton-223646

BD: "Comey did not claim that Clintons malfeasance did not meet the gross negligence standard nor did he cite any case law or jury instructions to support that claim."

Of course not in a public press conference. But he did go on to explain how this case lacked elements that other successful prosecutions under the law had.


This is a straw man argument and a dishonest one at that.

FBI can and does prosecute under this law without evidence of intent, willfulness or recklessness.
 

Mista Whiskas said...
American Jurisprudence, 2nd edition says "'gross negligence' is the absence of the exercise of "slight care" and is the omission or commission of an act with a conscious indifference to consequences so far as other persons are concerned."

See Curley v. AMR Corp., 153 F.3d 5 (2d Cir. 1998): "Like ordinary negligence, gross negligence also involves the commission or omission of an act or duty owing by one to another. However, the act or omission must be of an aggravated character, as distinguished from the failure to exercise ordinary care. In other words, gross negligence is conduct that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing."


Better sourcing than using common dictionaries to define terms of art, but you need to find sources applying the gross negligence standard to similar criminal statutes. The classified materials statute does not require harm to others. That is a standard taken from cases involving injury or death to another.

Furthermore. the Curley court commentary does not reflect the mens rea in criminal law, under which gross negligence does not rise to the level of intent or recklessness.
 

To pick up on Brett's start of his latest comment:
:

"It's worth pointing out ... " that both Brett and SPAM I AM! are "extremely dangerous" AND "grossly negligent" with their comments at this Blog on both the facts and the law, as well as their calls for "armed revolution." Brett's bringing in Martha Stewart without disclosing the facts and how the legal system worked in the area of insider trader law is not comparable and merely a feeble effort at celebrity sidetracking.

As to SPAM I AM! it's obvious he spent quite a bit of time away from his busy DUI dense practice in his rural community to come up with a cite in response to Mr. W's challenge. Note that SPAM I AM! uses his master debating method of focusing on gross negligence in his search for a jury instruction. Perhaps SPAM I AM! ignores what might be full jury instructions in a case involving the statute in issue. SPAM I AM! closes with this:

"Once again, Comey did not claim that Clintons malfeasance did not meet the gross negligence standard nor did he cite any case law or jury instructions to support that claim."

This was a press conference, not a detailed legal brief/oral argument before the Court. Read what SPAM I AM! said with care. SPAM I AM! is incoherent in saying what Comey did not claim and then criticizing Comey for not supporting what he did not claim (as stated by SPAM I AM!) with cites not only of case law but also of jury instructions. SPAM I AM! is a legal twit.

By the Bybee [expletives deleted], SPAM I AM!'s use of "malfeasance" is a reminder that it differs from "misfeasance" and "non-feasance." I'd suggest that SPAM I AM! is malfeasant in his selection.
 

SPAM I AM!'s 10:07 AM closes with this:

"FBI can and does prosecute under this law without evidence of intent, willfulness or recklessness."

No cites, especially on the role of the FBI as prosecutor. More evidence of SPAM I AM! as a legal twit.
 

Shag: This was a press conference, not a detailed legal brief/oral argument before the Court.

In other words, Comey was offering political remarks.

I completely agree.
 

Shag: No cites, especially on the role of the FBI as prosecutor.

Try following the links I provided in that post to reports on the recent prosecutions of two military members, the first of which comes from the FBI website.

https://www.fbi.gov/sacramento/press-releases/2015/folsom-naval-reservist-is-sentenced-after-pleading-guilty-to-unauthorized-removal-and-retention-of-classified-materials

http://www.politico.com/story/2016/05/kristian-saucier-investigation-hillary-clinton-223646
 

"Better sourcing than using common dictionaries to define terms of art"

Ballentines and Am. Jur. 2d are 'common dictionaries?'

"does not reflect the mens rea in criminal law, under which gross negligence does not rise to the level of intent or recklessness."

You've offered no support for this statement. Speaking of which...

"Mr. W: Citation for that?

Read the CO standard jury instruction for criminal negligence I provided above carefully for content.

If you want a general history of the subject, get a treatise at your local law library."

So you have no source. We see.

"In other words, Comey was offering political remarks.

I completely agree."

So his criticisms of Clinton were just political remarks then.

"Try following the links I provided in that post to reports on the recent prosecutions of two military members, the first of which comes from the FBI website."

I went to that first one, and as is characteristic of you, not only does it not prove your point it undermines it. It's a thumbnail sketch of that case, so it's characteristically sloppy of you to find it on point with this one (of course, you're ignorant of much of the facts of this one too because they're just not public), but it also states, apposite to the Clinton case, "he admitted to Naval personnel that he had handled classified materials inappropriately."
 

I also have a question about this. The relevant law applies to "any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense." What's the evidence that something in this area was involved? Note that cases like Gorin and subsequent cases have specified that 'relating to the national defense' must be read in narrow fashion lest the provision be unconstitutionally vague.
 

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SPAM I AM! with this from his 10:30 AM comment:

"In other words, Comey was offering political remarks.

I completely agree."

once again attempts, feebly once again, his rural master debating techniques. I have not, and do not, claim that Comey was offering "political remarks." So SPAM I AM! is agreeing with himself.

Is SPAM I AM! claiming that the FBI does serve as prosecutor? His comment and cites don't establish this. But check this link:

https://www.yahoo.com/news/constitution-check-does-fbi-power-decide-gets-prosecuted-102806589--politics.html?r

with the title "Constitution Check: Does the FBI have power to decide who gets prosecuted?" This essay relates to Comey's statement.
 

Report: "Comey to testify on Clinton email probe Thursday"

Read more: http://www.politico.com/story/2016/07/house-oversight-chairman-comey-to-testify-thursday-225156#ixzz4DdnEKtY6

"FBI Director James Comey will testify on Capitol Hill Thursday regarding the bureau's investigation of Hillary Clinton's email practices, part of a concerted GOP effort to keep the heat on Clinton heading into the party conventions and a long congressional recess."

Two articles on NYT online also speak of how Comey's remarks are ready-made "attack ad" material. This is a curious "fix," if that is supposed to be to Hillary Clinton's benefit. The average person gets a bland letter, not a public press conference where prosecution is not deemed warranted, but extraneous remarks are added. Again, I have seen those with expertise here actually provide an example of the average letter.

https://pbs.twimg.com/media/CmnVM5uVMAAbcT7.jpg:large

From my vantage point, looks like the non-prosecution was reasonable (even beyond those cases where maybe it was possible to prosecute or endorse prosecution but weighing everything, prosecution [as compared to another possible sanction, perhaps] is not deemed warranted in the judgment of those in charge) but Clinton was handled in a way the average person would not. But, not really in a way quite beneficial to her.

[Orin Kerr at Volokh Conspiracy argued Comey's approach was sensible but did not address all the complaints regarding the nature of the remarks.]
 

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Mr. W: I also have a question about this. The relevant law applies to "any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense." What's the evidence that something in this area was involved?

At minimum, Clinton was reportedly discussing drone operations over her emails. "Information relating to the national defense."

Most of Clinton's violations involve other statutes concerning the storage of classified information in unauthorized locations and the provision of that information to uncleared persons.
 

My "rural" reference to SPAM I AM! reminds me of the role of The Donald's spokesperson Hope Hicks, who has to explain the gaffes of The Donald frequently, with hope that the hicks (aka The Donald's base of older undereducated white males) will Goebbels -Goebbels swallow her explanations.
 

Shag: I have not, and do not, claim that Comey was offering "political remarks."

If Comey was not offering a legal argument or political remarks, what exactly do you think he was offering?

Is SPAM I AM! claiming that the FBI does serve as prosecutor?

Comey appears to be assuming that role by making a no prosecution recommendation to the Justice Department.

This is perhaps the most infuriating part of Comey's statements. Not only is this not the role of the FBI director, but the only reason he would do so is to spare the Obama administration the responsibility to make that decision.

Political remarks.
 

SPAM I AM! is quite often loose with words. It was what he said at 10:07 AM, which I'll repeat here:

"FBI can and does prosecute under this law without evidence of intent, willfulness or recklessness."

Comey did serve as a prosecutor earlier in his career. But the FBI does not prosecute. With his experience as a prosecutor, however, he opined on the matter, well knowing that the DOJ would make the decision whether or not to prosecute. SPAM I AM! now seems to concede that the FBI indeed does not prosecute, this:

"Comey appears to be assuming that role by making a no prosecution recommendation to the Justice Department."

But Comey is not assuming that role. Rather, the FBI conducts investigations within it authority and makes recommendation (to DOJ) on whether or not to prosecute (by DOJ). Such recommendations are made based upon evidence, the applicable law and certain other factors that may be relevant from the FBI investigation.

Comey was reporting on the results of the FBI investigation. He presented a summary. (Those who have time may look to other reports by Comey as head of the FBI on its investigations.) SPAM I AM! comes up with in response to my statement that I was not claiming Comey was making "political remarks, asking me:

"If Comey was not offering a legal argument or political remarks, what exactly do you think he was offering?"

Comey's statement speaks for itself. But SPAM I AM! is not pleased with the statement. So be it. SPAM I AM! remains a legal twit. Perhaps the congressional hearings will reveal more information. But SPAM I AM!'s frustration is that he does not understand the role of the FBI and Comey as its Director. The DOJ will make the decision on whether or not to prosecute.



 

BD: "If Comey was not offering a legal argument or political remarks, what exactly do you think he was offering?"

Shag: Comey's statement speaks for itself.


Translation: I refuse to admit that Comey was making an obvious political statement.

Indeed, Limbaugh just did a mash-up of Obama's earlier remarks backing Clinton in the email investigation with Comeys remarks yesterday. They both use nearly the exact same terms.

Message received and relayed.
 

Off topic, but I'd pay to see a debate between Tushnet and Graber.

Back on topic, about 13 years ago, Comey said this:

"At a news conference announcing the charges against Ms. Stewart, James B. Comey, the United States attorney for the Southern District of New York, said, ''This criminal case is about lying -- lying to the F.B.I., lying to the S.E.C., lying to investors.'' Addressing a question that has long hovered over the investigation, he added, ''Martha Stewart is being prosecuted not for who she is, but because of what she did.'' "

Tuesday, Confronted with a woman who'd lied, lied to the FBI, lied to the IG, lied to the public, to conceal what she'd did, he decided prosecution wasn't warranted. And Hillary Clinton isn't going to be prosecuted, not because of what she did, but because of who she is.

The double standard is breathtaking.

Comey knows what responsible prosecutors do when faced with deliberate crimes that damage national security. But he also knows some animals are more equal than others. Hillary will walk because of who she is, and somebody less important would have felt the full weight of the law for such offenses.
 

This whole thing isn't really "on topic" -- that was Brexit.

First, the "case" here is "about" alleged mishandling emails, leading her open to criticism of data security and avoidance of oversight given emails could not properly be provided. It is not "about lying" even if allegedly that was a charge that might arise from it.

Second, we realize Brett and Bart think Clinton has "lied" but that isn't the test for criminal prosecution. Weighing everything, someone who (as Mr. W. et. al. has shown) knows more about this than Brett (and any of us, particularly given the materials we have not seen) has determined there is no reasonable case here.

The two cases are not simply fungible. But, at any rate, she "will walk" because the evidence for a reasonable prosecutor to bring a criminal prosecution isn't there. A range of people are saying this, including those who oppose her ideologically while being experts in the field.
 

Second, we realize Brett and Bart think Clinton has "lied" but that isn't the test for criminal prosecution. Weighing everything, someone who (as Mr. W. et. al. has shown) knows more about this than Brett (and any of us, particularly given the materials we have not seen) has determined there is no reasonable case here.

Actually, Clinton's serial lying concerning the purpose and scope of her email system can be used as evidence in two and maybe three ways.

First, the lying is circumstantial evidence that Clinton knew her emails contained classified information and was attempting to cover it up. Remember that knowledge is the mens rea of two of the three of Clinton's violations of the Espionage Act.

Second, the lying in combination with the deliberate destruction of her email is circumstantial evidence to support an obstruction of justice charge. One wonders how many of these lies she repeated in the FBI interview. Lying during a law enforcement interview alone was enough to support prosecution of Scooter Libby.

Third, the lying is direct evidence to impeach Clinton if she decided to take the stand at trial.
 

SPAM I AM! is a translator! And he's so busy with his law practice that he has time for Limburger? What a strange lawyer is SPAM I AM! Since SPAM I AM! has so much time on his hands, he might put together questions that GOP congressman can ask him at the hearing, breaking down Comey's statement, sentence by sentence, phrase by phrase, word by word with his marvelously demonstrated skills as a cross-examiner. Perhaps after compiling his questions, SPAM I AM! can give us another self-congratulatory WOO HOO! No wonder SPAM I AM!'s rural neighbors refer to him as just another pisshole in the snow.

Frick and Frack are experts with their own lies at this Blog. While the Martha and Hillary matters are not fungible (as Joe has pointed out) Brett and SPAM I AM! are, two "pees" [sic] in a pod. And the cheesy Limburger makes three. And all three are narcissists. I imagine that Brett and SPAM I AM! spend their seemingly excessive spare time scrolling through the archives of this Blog just to see their respective photos accompanying their comments. Note the resemblance of Brett to Limburger, who also may have samll hands. Keep up the crapola, Frick and Frack.
 

"Second, we realize Brett and Bart think Clinton has "lied" but that isn't the test for criminal prosecution."

Comey thought she'd lied. It isn't a near thing, it was pretty blatant.
 

Comey thought she'd lied. It isn't a near thing, it was pretty blatant.

Comey's entire statement can be found at https://m.fbi.gov/#https://www.fbi.gov/news/pressrel/press-releases/statement-by-fbi-director-james-b.-comey-on-the-investigation-of-secretary-hillary-clintons-use-of-a-personal-e-mail-system

I don't see any place in there where he stated that Hillary lied, and the word "lie" does not appear in the document. Do you have something else in mind?
 

What Brett probably has in mind if Mark Field is correct (and I think he is) is that Comey lied.
 

Mark, it's in the penumbras and emanations, like dignity of the states.
 

"They both use nearly the exact same terms.

Message received and relayed."

This fellow has a proven record of integrity in standing up to his superiors, your slandering him for coming to a conclusion contrary to yours on a federal case where he has decades of experience and access to more of the facts relative to your lack of both only serves to undercut your own integrity.


 

Brett,

How familiar are you with the Stewart case? What part of the indictment and trial transcripts would you point to in making your conclusions about that case relative to this one? I hope you're not reckless or careless enough to opine on the matter when you don't have even this basic knowledge of that case, though given you surely don't have comparable knowledge of what's going on in the Clinton case and how you freely opine on that perhaps I shouldn't get my hopes up. One tip you should be wary: note that Bart clearly recognized you're wrong about how Clinton's 'lies' would work in an obstruction case (that's why he talks about the more indirect ways these statements might be used). Why keep leaping where you've clearly not gotten a good look?
 

http://www.politico.com/story/2016/04/hillary-clinton-prosecution-past-cases-221744

Discussion of differences between Clinton's case and others that were ultimately prosecuted.
 

Me: What's the evidence that something in this area was involved?

Bart: At minimum, Clinton was reportedly discussing drone operations over her emails. "Information relating to the national defense."

Again, your cocksureness on this is based on 'reports.' On your first post on this topic here you fell spectacularly on your face in this very thread relying on a 'report' that you wished to be true. You've got quite a track record of this here. And yet you continue. It's as if you you're devoid of either shame or self-awareness.

There are also 'reports' that the 'reported' 'drone discussions' were of newspaper articles about our drone programs, any mention of which is, insanely, considered technically 'classified' by the administration but caselaw in this area has repeatedly asserted that matters made public cannot be counted as 'information relating to the national defense.' So, your foundation here could be one of sand, yet you continue to dig down. Incredible.
 

So I just finished the 'I Side' online quiz to indicate which Presidential candidate I agree with the most, and here are my results:

Gary Johnson 90%
Bernie Sanders 87%
Hillary Clinton 86%
Jill Stein 86%
Donald Trump 59%

This helps me in how I was already leaning.
 

Link to the quiz: http://www.isidewith.com/

 

MW- this is obviously a biased quiz. It leaves out the Sweet Meteor of Death. Sad!
 

Дружеството акции в cong ty in gia re Хонг Post иска да стане най-професионалните xưởng in tại hà nội услуги дизайн за печат и реклама.in kỷ yếu giá rẻ
in phong bì giá rẻ Оперативна ефективност, устойчив растеж, mẫu thẻ nhân viên đẹp
In thẻ VIP giá rẻ основан на хармония in giá rẻ tại hà nội между интересите на засегнатите страни mau ky yeu dep
mau phong bi dep Винаги помисли клиенти xưởng in offset giá rẻ tại hà nội като център на цялата работа,báo giá in kẹp file
in bằng khen за предмет най-важната служба. Качество на работа,thiet ke in an
напредък задоволително клиент е приоритет 1, ценен отношения в дългосрочен план, in bao li xi 2017
in thiep chuc mung nam moi 2017 in catalogue gia re нови партньори за развитие, разработен въз основа на thiết kế in ấn giá rẻ tại hà nội зачитане на страните. С лозунга Дълготрайно сближаване in lấy ngay chất lượng tốt Съвместно разработените


 

"What does the Chilcot report say?
Sir John Chilcot delivered a devastating critique of Tony Blair’s decision to go to war in Iraq in 2003, concluding that Britain chose to join the US invasion before “peaceful options for disarmament” had been exhausted. His report, which amounts to arguably the most scathing official verdict given on any modern British prime minister, concludes:
Tony Blair exaggerated the case for war in Iraq
There was no imminent threat from Saddam Hussein
Britain’s intelligence agencies produced "flawed information"
George Bush largely ignored UK advice on postwar planning
The UK military were ill-equipped for the task
UK-US relations would not have been harmed had the UK stayed out of the war"

https://www.theguardian.com/uk-news/2016/jul/06/tony-blair-deliberately-exaggerated-threat-from-iraq-chilcot-report-war-inquiry
 

Back in the Archives of this Blog during the Bush/Cheney Administration, we had timely discussions on the 2003 invasion of Iraq as events were occurring. Some of us came to conclusions similar to the Chilcot report on a more timely basis regarding Blair as Bush's poodle. Bush was America's first MBA President. The Donald also has an MBA and has been described as a Putin Puppy and who also thinks that Saddam was good at getting rid of terrorists. Imagine The Donald as President wearing that sheriff's badge. To quote The Donald's son-in-law: "Oy vey iz mir!"
 

Check out Daily Kos' "Abbreviated Pundit Round-Up" for a medley of newspaper front pages, etc, on the Chilcot report with the emphasis on Tony Blair. (I wonder if Blair has gone to confession since the report was released.)

There are a lot of other interesting itms, including on Clinton emails, The Donald and Putin, Gingrich, etc. It looks like The Donald's VP choices are down to Christie and Gingrich. And Marco will not be attending the GOP convention because he's too busy running for the Senate despite his commitment earlier not to seek re-election.

Garry Trudeau's "Yuge!" has been released and Amazon has a couple of early reviews.

Back on topic - Brexit - the NYTimes has an interesting article on the fallout of certain political elites.
 

BD: "They both use nearly the exact same terms. Message received and relayed."

Mr. W: This fellow has a proven record of integrity in standing up to his superiors


Comey has a long history of standing up to his GOP superiors and now a new track record bowing his Democrat superiors. Flip sides of the same coin.

Comey has far more evidence on Clinton than he had on Libby, for whom he recommended an independent counsel.

Mr. W: Discussion of differences between Clinton's case and others that were ultimately prosecuted.

Like Comey, the Democrat Politico was following the Clinton line offering straw men to move the legal goal posts. Let us read:

The relatively few cases that drew prosecution almost always involved a deliberate intent to violate classification rules as well as some add-on element: An FBI agent who took home highly sensitive agency records while having an affair with a Chinese agent; a Boeing engineer who brought home 2000 classified documents and whose travel to Israel raised suspicions; a National Security Agency official who removed boxes of classified documents and also lied on a job application form.

Politicos straw men actually appear very similar to Clinton with the additional fact that Clinton serially lied to cover up her criminal activity.

The better comparisons are cases where FBI and the military prosecuted military members with FAR less evidence than they have against Clinton.

https://www.fbi.gov/sacramento/press-releases/2015/folsom-naval-reservist-is-sentenced-after-pleading-guilty-to-unauthorized-removal-and-retention-of-classified-materials

http://www.politico.com/story/2016/05/kristian-saucier-investigation-hillary-clinton-223646

BD: At minimum, Clinton was reportedly discussing drone operations over her emails. "Information relating to the national defense."

Mr. W: Again, your cocksureness on this is based on 'reports.'


The Wall Street Journal report was confirmed by multiple sources. Even the Democrat media had to pick it up.

http://www.wsj.com/articles/clinton-emails-in-probe-dealt-with-planned-drone-strikes-1465509863

Mr. W: So I just finished the 'I Side' online quiz to indicate which Presidential candidate I agree with the most, and here are my results: Gary Johnson 90%, Bernie Sanders 87%.

Given that Johnson and Sanders disagree on almost everything to do with limitations on government power and economic policy, that must be some quiz.

Do you generally rely on such quiz's to decide for whom to vote?

 

This comment has been removed by the author.
 

The criminal defense bar who works these cases hope that Comey had provided them with a new defense for their clients:

“I intend to use the Hillary defense,” said Sean M. Bigley, a lawyer whose firm handles dozens of cases a year involving national security clearances. “I really question how any agency can say someone is a security risk if the president of the United States did something similar.”

http://www.mcclatchydc.com/news/nation-world/national/article88042162.html#storylink=cpy

Its cute that Mr. Bigley actually believes that there is one legal standard for everyone.

Royal immunity from prosecution does not apply to the rest of us.
 

I lost track of what the topic was.

This blog started Jan. 2003. So long ago that Jack Balkin had comments ... the early ones are clogged up with spam now. Like this one:

http://balkin.blogspot.com/2003/03/die-is-cast-by-time-most-of-you-read.html

Remember the 2004 election?

http://balkin.blogspot.com/2004/11/that-damned-electoral-college.html
 

"Comey has far more evidence on Clinton than he had on Libby, for whom he recommended an independent counsel."

You're ignorant as to what Comey knows/knew about either case. You literally don't know what you're talking about.

"The better comparisons are cases where FBI and the military prosecuted military members with FAR less evidence than they have against Clinton."

We've covered this, in your first example the guy admitted his guilt. That's not 'FAR less evidence' than on Clinton.

"The Wall Street Journal report was confirmed by multiple sources."

Yeah, multiple sources have never been wrong before, so go ahead and rely on it! And as I mentioned, multiple sources then said the drone emails were discussions of newspaper articles, which, per caselaw, would not qualify for prosecution under the law in question.

"Given that Johnson and Sanders disagree on almost everything to do with limitations on government power and economic policy"

The overlap is due to so many questions on social issues and civil liberties I'd guess.
 

"Comey has a long history of standing up to his GOP superiors and now a new track record bowing his Democrat superiors. Flip sides of the same coin."

All the while contributing to GOP Presidential candidates (McCain and Romney). You're full of it.
 

As was perfectly predictable, anything short of Comey coming out and saying, "String her high!" was going to be spun as a complete exoneration. As though she didn't grossly (And illegally!) compromise national security in order to evade the FOIA law, and then lie to all and sundry about it as it was investigated. As though it wasn't an utter violation of professional ethics for Lynch to meet secretly with Bill, and a separate violation to not recuse herself after being caught. As if there weren't numerous other things Hillary has done that would put somebody less important behind bars.

My disgust for the corruption of our political class and the federal government could scarcely get any greater, but I'm sure the next few years will bring worse outrages. Every offense they get away with just emboldens them to do worse.

I miss the US where a President could be forced to resign for a tiny fraction of what we know Hillary has done.
 

This comment has been removed by the author.
 


Glory days yeah goin back
Glory days aw he ain't never had
Glory days, glory days
 

Mr. W: We've covered this, in your first example the guy admitted his guilt. That's not 'FAR less evidence' than on Clinton.

The Navy prosecuted this sailor and threatened him with prison unless he pled guilty and accepted the deal they were offering.

The Feds do not play with the average Joe or Jane.

BD: "Comey has a long history of standing up to his GOP superiors and now a new track record bowing his Democrat superiors. Flip sides of the same coin."

Mr. W: All the while contributing to GOP Presidential candidates (McCain and Romney).


You really do not get how the game is played, do you?

If Comey recommended prosecution, the progressive bureaucracy, political class, legal community and media would be excoriating him right now as a corrupt tool of the GOP.

There is no remotely comparable GOP counterparts who will go to bat for GOP members accused of crimes.


 

There is no remotely comparable GOP counterparts who will go to bat for GOP members accused of crimes.


# posted by Blogger Bart DePalma : 12:58 PM


Which explains why Dumbya was prosecuted for torturing people. Oh, wait...

 

bb: Which explains why Dumbya was prosecuted for torturing people. Oh, wait...

The President cannot be prosecuted for a crime while he is office. After taking Congress in 2006, the Democrats could have impeached Bush for the high crime of torture and made him available for criminal prosecution.

Their problems were a lack of evidence and the fact that the Democrats on the Intel committees knew and approved of the CIA interrogation program.
 

There is no remotely comparable GOP counterparts who will go to bat for GOP members accused of crimes.


# posted by Blogger Bart DePalma : 12:58 PM


I think you're underestimating how big a tool you are.

 

Well, I guess Republicans can go pound sand when it comes to getting Hillary's testimony to the FBI. They didn't bother recording it.

They prosecute people who lie to them in these things, and they didn't bother recording it? I guess that makes sense, as it had already been decided she was not to be prosecuted for anything. A recording of her perjuring herself would have been pointless.

Every time I think this couldn't get worse, it does. They're not even bothering to pretend the fix wasn't in, at this point.
 

A recording of her perjuring herself would have been pointless.

False or misleading statements to the FBI are not prosecuted as perjury. It's a separate statute.

Kind of assuming your conclusion, aren't you?
 

False or misleading statements to the FBI are not prosecuted as perjury. It's a separate statute.

Obstruction of justice.

 

Kind of missing the point, aren't you, Mark?

How do they prosecute false or misleading statements to the FBI as ANYTHING, if they don't record them? On the basis of unsupported agents' testimony?

Admittedly, it was only a couple years ago that they reversed their totally insane established policy of not making recordings. But, reverse it they did.

They violated the new policy in not recording her interview.

But, again, why should they have bothered, since she could have said absolutely anything she wanted, and not been prosecuted. The interview was a total waste of time, the decision had already been made that she was above the law.
 

How do they prosecute false or misleading statements to the FBI as ANYTHING, if they don't record them?

You're still simply assuming that she actually said something false. If she didn't, your complaints are moot.

But to answer your question, they prosecute such cases without recordings all the time: how do you think they did it in the days before recordings were possible? Plus, of course, it's not possible for field agents to record every single statement.

Now, is it better practice to record a conversation? Yes, in most cases. I have no idea what FBI policy would control this situation, and you haven't linked one, so it's hard to say with certainty. But if you don't trust the FBI at this level, it's hard to see how recording the interview would have alleviated your concerns.
 

Here is Comey's opening statement:

https://youtu.be/_ZcI5PrJ2Cs

Of note, Comey studiously avoided saying that there was insufficient evidence to convict Clinton under the gross negligence standard, but rather said that gross negligence is too low of a standard and no reasonable prosecutor will prosecute under this law.

Comey again grossly misstates the law when he said that all criminal prosecutions require that the defendant know they were doing something illegal. Ignorance of the law or playing stupid is not a legal defense. No reasonable former prosecutor would say such a thing.

Here is ex prosecutor and current Congress critter Trey Gowdy cross examining Comey to lay the foundation for a House criminal referral to the FBI for Clinton committing perjury under oath to Congress:

https://youtu.be/tV6q9LOubfc

Gowdy puts on an absolute clinic here.

Of note, Gowdy touched upon the same uses of Clinton's serial lying in a criminal prosecution to which I referred above.

With this predicate, it will be interesting to see Comey justify not recommending prosecution for perjury to Justice.
 

The taping policy is discussed here (with links to previous coverage):

https://www.techdirt.com/articles/20140609/10344327526/why-fbis-new-interview-recording-policy-probably-wont-change-anything.shtml

It is a "presumption":

"This policy establishes a presumption that the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the United States Marshals Service (USMS) will electronically record statements made by individuals in their custody.

http://www.azcentral.com/story/news/politics/2014/05/21/fbi-reverses-recording-policy-interrogations/9379211/

But, Clinton wasn't "in custody," right? The article quotes further:

"This policy also encourages agents and prosecutors to consider electronic recording in investigative or other circumstances where the presumption does not apply,'' such as in the questioning of witnesses.

So, now it's "encourages" and "consider." Like to see a full memorandum of the policy. The top article, e.g., notes a loophole involving "intelligence, sources or methods" that encourages non-taping. Did that apply here? The article was written in 2014, so is not some "Hillary Clinton the fix is in" exception alone.

AG Holder press release also focuses on "custody."

https://www.justice.gov/opa/pr/attorney-general-holder-announces-significant-policy-shift-concerning-electronic-recording

Also:

“This presumption in favor of recording applies to statements made by individuals in the custody of the FBI, the DEA, the ATF, and the United States Marshals Service. It allows for certain exceptions—such as when the interviewee requests that the recording not occur or when recording is not practicable.

"custody" ... "such as" etc.

Don't let details get into the way though. Haven't so far.

 

I'd say you're the one not letting details, like the AG secretly meeting with the husband of the subject of an ongoing investigation, get in your way.

I'm not going to pretend that this whole thing stinks on ice, just because you don't want to admit a major party in nominating a multiple felon.
 

"The Navy prosecuted this sailor and threatened him with prison unless he pled guilty and accepted the deal they were offering."

You can't get anything correct it seems, your article says the sailor's activities came to light *when he told them he mishandled the information.*

"If Comey recommended prosecution, the progressive bureaucracy, political class, legal community and media would be excoriating him right now as a corrupt tool of the GOP."

Sure Bart, that's why he took the unusual step of holding a press conference to smear her, because he was beholden to your liberal Credentialed Class.

"There is no remotely comparable GOP counterparts who will go to bat for GOP members accused of crimes"

There is an entire media and think tank apparatus designed exactly for that actually. In fact, pretty explicitly so.

 

"Gowdy puts on an absolute clinic here."

You live in a fantasy world. The GOP on the committee look like ignorant cranks with Comey painfully having to introduce them to the reality that exists outside of their ignorant conspiracy theories.
 

"I'd say you're the one not letting details, like the AG secretly meeting with the husband of the subject of an ongoing investigation, get in your way."

Look joe, the guy who doesn't even know what mens rea is is absolutely convinced Clinton is guilty here. In fact, he's been convinced she's guilty since before he even heard about this entire affair no doubt. His certainty is positively correlated with his ignorance of the matter at around a positive 1.000.
 

I'd say you're the one not letting details, like the AG secretly meeting with the husband of the subject of an ongoing investigation, get in your way.

Secretly. You know, in a way open to others. No wonder we are on different wavelengths in respect to ... well, words, I guess.

I'm not going to pretend that this whole thing stinks on ice, just because you don't want to admit a major party in nominating a multiple felon.

I'll assume (somewhat waringly) you mean "does not stink" but anyways even if it did "stink," that still doesn't mean prosecution is warranted here. For instance, using Killer Bs rules, I think there is enough to call Trump a "felon" (the latest is a doozie), but even if not, he stinks for sure.

Plus, again, it is not just me. Mr. W. pointed out conservative experts who disagree with you. It is not some personal thing. It's that you simply have a bad case and are continuously shown to be confused. This taping thing is just one more thing. Don't let facts and nuances get in the way though.
 

"Comey again grossly misstates the law when he said that all criminal prosecutions require that the defendant know they were doing something illegal. Ignorance of the law or playing stupid is not a legal defense. No reasonable former prosecutor would say such a thing."

You are either being stunningly dishonest or partisanly blind. Comey didn't say that was the law, he said it was "characteristic of every charged criminal case involving the mishandling of classified information." He goes on to discuss prosecutorial tradition with the law in question and how and why that tradition is what it is because the law in question is on its face so broad and counter to traditional legal views.

Readers can listen to it themselves here, Comey starts to address the matter around the 17 minute mark.

http://www.c-span.org/video/?c4609203/opening-statement

 

Mark Field. To be serious. Some criticized how Comey announced this thing from the "unfair to Clinton" side. This includes another lawyer that we both have seen online.

Did you find it a problem? Orin Kerr defended it but did not address some of the complaints.
 

BD: "Comey again grossly misstates the law when he said that all criminal prosecutions require that the defendant know they were doing something illegal. Ignorance of the law or playing stupid is not a legal defense. No reasonable former prosecutor would say such a thing."

Mr. W: You are either being stunningly dishonest or partisanly blind. Comey didn't say that was the law, he said it was "characteristic of every charged criminal case involving the mishandling of classified information."


Comey made a general observation concerning mens rea in the prosecution of criminal law without the weasel qualifier "characteristic of every charged criminal case involving the mishandling of classified information."

https://youtu.be/_ZcI5PrJ2Cs

He goes on to discuss prosecutorial tradition with the law in question and how and why that tradition is what it is because the law in question is on its face so broad and counter to traditional legal views.

This claim was also untrue as FBI does investigate and refer for prosecution cases involving mishandling classified materials with a mens rea less than intentional violation of the law.

Former federal prosecutor Andrew McCarthy eviscerates this Comey spin here:

http://www.nationalreview.com/corner/437560/fbi-director-comeys-suggestion-congresss-gross-negligence-statute-invalid


 

Did you find it a problem?

Yes, I did. In my view, government prosecutors shouldn't be making comments beyond the strict limits of (a) the decision to prosecute, and (b) the basis for that decision. It's not Comey's job to complain about Hillary or other employees of the State Dept being "careless" -- that's up to the President. And many of his comments were vague -- they could have applied to other employees of State rather than Hillary, but people took them to mean her.

I find it remarkable that people who have libertarian leanings are so willing to ignore (1) the over-classification problem which has been apparent in this case from the beginning; (2) the terrible policy which would be set affecting lower level government employees and whistle-blowers if Brett's view of the statute were to be enforced; and (3) a high government official making judgmental comments outside his brief.
 

I am plowing through the Comey transcript and Comey doubles down on his misrepresentation of mens rea under criminal law:

THE PROTECTION WE HAVE AS AMERICANS IS THAT THE GOVERNMENT IN GENERAL AND IN THAT STATUTE IN PARTICULAR, HAS TO PROVE BEFORE THEY 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 THAT WE KNEW WE WERE DOING SOMETHING THAT WAS UNLAWFUL. THAT'S THE PROTECTION WE HAVE

Hardly.

Congress Critter: MAY I INTERRUPT AND SUGGEST THAT THIS STATUTE SAYS KNOWINGTHY REMOVES SUCH DOCUMENTS OR MATERIALS WITHOUT AUTHORITY AND WITH THE ATTEMPT TO RETAIN SUCH DOCUMENTS OR MATERIALS AT AN UNAUTHORIZED LOCATION. THE INTENT HERE IN THE STATUTE IS TO RETAIN THE DOCUMENTS AT AN UNAUTHORIZED LOCATION. IT'S NOT INTENT TO PASS THEM ON TO A TERRORIST. OR TO SOMEONE OUT IN INTERNET LAND. IT'S JUST THE INTENT TO RETAIN THE DOCUMENTS OR MATERIALS AT AN UNAUTHORIZED LOCATION.

Comey: IT'S MORE THAN THAT, THOUGH. YOU WOULD HAVE TO SHOW THAT AND PROVE CRIMINAL INTENT. BOTH BY LAW, THAT'S THE WAY THE JUDGMENT WOULD INSTRUCT THE JURY


Nonsense. The mens rea for this provision of the Espionage Act only requires proof that the defendant knew that the information she was misstating was classified. There is no intent element written anywhere in this provision.


 

Comey claims he did not even consider whether Clinton was guilty under the gross negligence standard because Justice prosecutors have not prosecuted this law.

MY TERM EXTREMELY CARELESS, TRYING TO BE KIND OF AN ORDINARY PERSON, A COMMONSENSE WAY OF DESCRIBING IT SURE LOOKS CARELESS TO ME. THE QUESTION OF WHETHER THAT AMOUNTS TO GROSS NEGLIGENCE FRANKLY IS REALLY NOT AT THE CENTER OF THIS BECAUSE WHEN I LOOK AT THE HISTORY OF THE PROSECUTIONS AND SEE, IT'S BEEN ONE CASE BROUGHT ON A GROSS NEGLIGENCE THEORY. I KNOW FROM 30 YEARS THERE'S NO WAY ANYBODY AT THE DEPARTMENT OF JUSTICE IS BRINGING A CASE AGAINST JOHN DOE OR HILLARY CLINTON FOR THE SECOND TIME IN 100 YEARS BASED ON THOSE FACTS.

Incredible. I have never met a prosecutor who voluntarily increased the mens rea requirement above that required by the statute and know of no judge that would permit a prosecutor to do so on his own volition.

 

Comey admits that he had evidence Clinton mishandled classified information and is not trying to spin that.

Congress Critter: AND SO AN UNAUTHORIZED SERVER IN THE BASEMENT IS NOT MISHANDLING?

Comey: NO, THERE IS EVIDENCE OF MISHANDLING HERE. THIS WHOLE INVESTIGATION IS FOCUSED ON IS THERE SUFFICIENT EVIDENCE OF INTENT.



 

Apparently, at least one Congress critter read the unauthorized storage provision of the Espionage Act.

Congress Critter: LET'S TALK ABOUT THIS PARTICULAR STATUTE, 18 USC 1924. I TAKE IT WE COULD ALL AGREE -- YOU AND I COULD AGREE ON A COUPLE OF THE ELEMENTS. SECRETARY CLINTON WAS AN EMPLOYEE OF THE UNITED STATES.

Comey: CORRECT.

AS A RESULT OF THAT EMPLOYMENT, SHE RECEIVED CLASSIFIED INFORMATION.

CORRECT.

AND THERE IS NO DOUBT ABOUT THOSE TWO ELEMENTS. NOW I DON'T KNOW WHETHER THE NEXT ELEMENT IS ONE ELEMENT OR TWO, BUT IT TALKS ABOUT KNOWINGLY REMOVE SUCH MATERIALS WITHOUT AUTHORITY AND WITH THE INTENT TO RETAIN SUCH MATERIAL AT AN UNAUTHORIZED LOCATION. I'M GOING TO TREAT THOSE AS TWO SEPARATE PARTS OF THE INTENT ELEMENT. FIRST OF ALL, DO YOU SEE THE WORD "WILLFULLY" ANYWHERE IN THIS STATUTE?

I DON'T.

AND THAT WOULD INDICATE TO YOU THAT THERE IS A LOWER THRESHOLD FOR INTENT?

NO, IT WOULDN'T.

WHY?

BECAUSE WE OFTEN -- AS I UNDERSTAND THE JUSTICE DEPARTMENT'S PRACTICE AND JUDICIAL PRACTICE WILL IMPUTE TO ANY CRIMINAL STATUTE AT THAT LEVEL WITH A KNOWINGLY ALSO REQUIREMENT THAT YOU KNOW THAT YOU'RE INVOLVED IN CRIMINAL ACTIVITY OF SOME SORT. A GENERAL MENS REA REQUIREMENT. IF IT SPECIFICALLY SAYS IT IS A NEGLIGENCE-BASED CRIME, I DON'T THINK A JUDGE WOULD IMPUTE THAT.

BUT CONGRESS SPECIFICALLY OMITTED THE WORD "WILLFULLY" FROM THIS STATUTE, AND YET YOU ARE IMPLYING THE WORD "WILLFULLY" IN THE STATUTE. IS THAT FAIR?

THAT'S FAIR.


General intent means that Hillary Clinton intended to perform the act which constitutes the crime - mishandling classified information. It does not require that the defendant know she is acting unlawfully.

The defense of a lack of general intent is essentially a mistake defense. If Clinton intended to send an email over her government server and mistakenly used her personal server, then she could exercise this defense.

 

Comey shifted his position somewhat later in his testimony.

Congress Critter: DO YOU BELIEVE THAT SINCE THE DEPARTMENT OF JUSTICE HASN'T USED THE STATUTE CONGRESS PASSED, IT'S INVALID?

Comey: NO. I THINK THEY ARE WORRY IT IS INVALID, THAT IT WILL BE CHALLENGED ON CONSTITUTIONAL GROUNDS WHICH IS WHY THEY'VE USED IT EXTRAORDINARILY SPARINGLY IN THE DECADES.


Really? When has the Justice Department ever questioned the constitutionality of the Espionage Act or more generally the gross negligence standard?

The Feds regularly prosecute strict liability crimes without any mens rea element at all.
 

"FBI does investigate and refer for prosecution cases involving mishandling classified materials with a mens rea less than intentional violation of the law."

For those who don't want to waste time reading the McCarthy article to which Bart links following this statement note it doesn't provide any evidence in support of Bart's statement. Rather, it's McCarthy's argument as to why there shouldn't be the prosecutorial stance or tradition Comey describes.
 

A Congress critter followed up on Comey's ridiculous constitutionality claim.

Congress critter: SO YOUR CONCERN IS WITH THE NEGLIGENCE THRESHOLD THAT YOU THINK IT REQUIRES KNOWING THE CRIME. BUT IN ALL 50 STATES, ISN'T THERE A NEGLIGENT HOMICIDE STATUTE AND AREN'T PEOPLE PROSECUTED FOR THAT ALL THE TIME AND DOESN'T THE SUPREME COURT AND ALL THE COURTS BELOW THAT UPHOLD THOSE PROSECUTIONS JUST ON THE BASIS OF NEGLIGENT?

Comey: I DON'T KNOW WHETHER ALL 50 STATES. I THINK THE STATUTES ARE RELATIVELY COMMON.

DON'T ALL 50 STATES HAVE SOMETHING LIKE THAT AND AREN'T THOSE SUSTAINED IN THE UPPER COURTS, THOSE CONVICTIONS?

I DON'T KNOW WHETHER ALL 50 STATES HAVE SOMETHING LIKE THAT. I THINK IT'S VERY COMMON, AND I THINK THOSE ARE SUSTAINED.


Comey is an excellent lawyer and knows damned well that criminal or gross negligence crimes are perfectly constitutional.
 

"The mens rea for this provision of the Espionage Act only requires proof that the defendant knew that the information she was misstating was classified."

We discussed this measure before, of course there's a criminal intent-knowingly. Comey is saying they'd have to prove she knew what she was sending was classified and that the person she was sending it to was unauthorized to receive it.

"I have never met a prosecutor who voluntarily increased the mens rea requirement above that required by the statute"

I've never met or heard of a prosecutor that seems ignorant of prosecutorial discretion and tradition in bringing or not bringing charges. I'm curious Bart, do you contest Comey's claim about the dirth of prosecutions under 793(f), and if you can't how do you explain it other than Comey's statement about why?

"When has the Justice Department ever questioned the constitutionality of the Espionage Act"

I don't know about the Justice Department specifically, on that I'd defer to someone who has worked there for 30 years like Comey unless I had good reason to do otherwise. But heck, I remember discussion of the dubious constitutionality of the Espionage act in Con Law classes. Just in recent days of reading SCOTUS and Circuit cases on the Espionage Act it's plain the judiciary has been quite wary of the law for a long time.


 

The exchange is too long to post here, but Comey admitted that none of the attorneys who Clinton provided the classified emails to review were cleared to view classified material.

This is a felony crime under another provision of the Espionage Act, but FBI did not appear to be investigating this crime at all. Consideration between lawyers?
 

BD: "I have never met a prosecutor who voluntarily increased the mens rea requirement above that required by the statute"

Mr. W: I've never met or heard of a prosecutor that seems ignorant of prosecutorial discretion and tradition in bringing or not bringing charges.


Prosecutorial discretion is the decision not to prosecute in individual cases of technical guilt with mitigating circumstances. Comey claims there is insufficient evidence of guilt.

This former prosecutor and current defense attorney has never before heard of the prosecutorial "tradition" of erasing criminal statutes with which the prosecutor disagrees.

I'm curious Bart, do you contest Comey's claim about the dirth of prosecutions under 793(f)

Prosecutors do not use laws when easier alternatives are available. I have noted for months that this case should be prosecuted under the laws prohibiting the knowing storage of classified information in unapproved locations and provision to uncleared persons. These are far more common prosecutions and the laws we were well aware of in military intelligence.
 

"This former prosecutor and current defense attorney has never before heard of the prosecutorial "tradition" of erasing criminal statutes with which the prosecutor disagrees."

You've never heard of a prosecutor, say, generally refusing to bring speeding charges for people who have sped only 5 mph or less over the speeding limit or for the classic pregnant women being rushed to the hospital, or against victims who attack accused in court, etc? These might not exactly be on point, but all involve prosecutorial discretion and tradition. Total enforcement of the law is a silly myth.

"Prosecutors do not use laws when easier alternatives are available."

That's not going to fly here because, for one thing, as you've noted all along the mens rea here is a lower, and easier, one to get than that for most other related criminal statutes (that's why it's being focused on so much of course). It's the easier alternative, yet it's nary been used.
 

BD: "This former prosecutor and current defense attorney has never before heard of the prosecutorial "tradition" of erasing criminal statutes with which the prosecutor disagrees."

You've never heard of a prosecutor, say, generally refusing to bring speeding charges for people who have sped only 5 mph or less over the speeding limit


That is an evidentiary issue with the variability of radar or worse personal observation.

or for the classic pregnant women being rushed to the hospital

Necessity is an affirmative criminal defense in nearly every jurisdiction.

or against victims who attack accused in court, etc?

These unfortunates are routinely prosecuted.

None of your straw men involve a "prosecutorial tradition" of declining to enforce speeding or assault laws.

BD: "Prosecutors do not use laws when easier alternatives are available."

That's not going to fly here because, for one thing, as you've noted all along the mens rea here is a lower, and easier, one to get than that for most other related criminal statutes (that's why it's being focused on so much of course). It's the easier alternative, yet it's nary been used.


Actually, gross negligence and recklessness are swamps of subjectivity. I would MUCH rather prosecute a case using the knowledge standard. Your average jury is not going to believe a high government official of decades of service did not know classified materials or that emails are stored on electronic devices.
 

Thanks Mark Field.

The Libertarian Party candidate opposed prosecution. As did the guy who Brett, as a matter of integrity, said he respected. Long before the other day, which was apparently the day when I et. al. became lost causes. The two here supported self-professed conservative Ted Cruz. So, not so "remarkable" as applied even w/o other issues.

I take MF was being a tad sarcastic though. Anyways, till next thread.
 

Again Bart, answers like the one's you've given make me wonder if you really ever worked as a prosecutor or defense lawyer. They're laughable. The classic 'pregnant woman' example isn't based on a necessity defense (people rushing others to the hospital are often actually prosecuted and convicted), it refers to the decision of some prosecutors and law enforcement not to charge in the first place. And prosecutors don't charge (and many police don't ticket) people going 5 mph over not because of evidentary matters, but because it's seen as small potatoes and a judge wouldn't want their time wasted on such matters (and so is likely to dismiss, I've seen that happen). And I wouldn't say victims that assault offenders in court are routinely prosecuted, they often are not, and both facts demonstrate what my point: that while their behavior might fall into the written law, many prosecutors decide that applying the law in cases like that are not 'in the interest of justice'. Prosecutors and law enforcement know that laws are often written in absurdly overbroad ways and so they use their own sense of justice and priorities to sometimes decide to rarely, if ever, enforce them in these ways. There's a very large literature on this subject actually.

"gross negligence and recklessness are swamps of subjectivity. I would MUCH rather prosecute a case using the knowledge standard"

See, and things like this. Just ridiculous. Gross negligence and recklessness are much more objective than knowledge, the former involve objective tests (duties of reasonable care and such), the later is subjective (what the accused knew in his head). That's why the model penal code and every treatise, hornbook, etc., ranks the mens rea from most serious and hard to show, to least, as purposeful, knowing, reckless, negligent.
 

I share Mark Field's views on the statement The 3rd paragraph includes this:

"Second, I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government. They do not know what I am about to say."

Were there any questions on this at the committee hearing? Has similar language been used previously in statements by Comey in his role as Director of the FBI? Were there discussions with DOJ or other agencies about the investigation as opposed to this statement? Did DOJ know before Comey made the statement what the recommendation might be?

I watched very little of the hearing as I geared up for the Thursday liberal lunch, some progressives, including looking forward to a couple of Dark N' Stormys to brighten my day.
 

Here's an article discussing what I'm talking about and about a federal policy to boot. For a long time US Attorneys would charge people with violations of the Endangered Species Act, which had a mens rea of 'knowingly,' if they accused knew they were taking an animal but only later found out the animal was endangered. They got many prosecutions using this approach. There were some challenges, but the Circuits said that's all the law required, that it was a general intent crime. One of these challenges was headed for SCOTUS review when the DOJ suddenly changed their policy and directed US Attorneys to only bring prosecutions when the person knew the animal they were taking was endangered.

https://law.lclark.edu/live/files/11135-172-newcomer

The article is somewhat biased imo, but the policy directive checks out. They were getting prosecutions which were being upheld (which is more than can be said for 793(f)!) under their mens rea approach, and they totally backed off it and opted to only charge under a more difficult mens rea approach, and issued a general directive for all US attorneys to do it. The similarity to what Comey is talking about is striking. As I said, this is just not uncommon.

Also, in reading this gem from Bart: "gross negligence and recklessness are swamps of subjectivity. I would MUCH rather prosecute a case using the knowledge standard" I remembered that he himself in this very thread wrote:

"Gross negligence is one of the lesser mens rea."

You can't make this stuff up if you wanted to satirize him.

Alas, soon the thread will go into 200+ land and I don't know how to access there. The belly laughs will be missed.

 

Alas, soon the thread will go into 200+ land and I don't know how to access there. The belly laughs will be missed.

# posted by Blogger Mista Whiskas : 10:30 PM


Click on the "Post a comment" link. You will see a link to access "newest" posts just above the "Leave your comment" text.
 

Sono Công ty quà tặng yume wo kanaeru tame ichiban taisetsu na Móc khóa khui bia wo ageyou
Jibun wo motto Móc khóa nhựa dẻo naru fushigi na MEDICINE

Suki da yo to tatta Móc khóa da hito koto ga ieta nara
Kurayami sae Móc khóa mica ni naru n da
 

"I find it remarkable that people who have libertarian leanings are so willing to ignore (1) the over-classification problem which has been apparent in this case from the beginning; (2) the terrible policy which would be set affecting lower level government employees and whistle-blowers if Brett's view of the statute were to be enforced; and (3) a high government official making judgmental comments outside his brief."

1) I object to over-classification when it comes to it's application to regular people. When it comes to people in government employment who've gotten security clearances? Not so troubled. Hillary knew the rules, went out of her way to violate them.

And this is not just a matter of "over-classification" any more than Bill's scandals were just about an office romance.

2) Brett's view of the statute IS enforced on lower level employees and whistle blowers. That's the point, Hillary is getting a pass from a general practice Comey mistates. But followed in previous cases with people not named "Clinton".

3) Yeah, and Galileo violated a general rule when he said, "Eppur si muove". This was Comey's Eppur si muove moment. Ordered to let the guilty walk, he had to get a dig in. If he'd been letting an innocent walk, that would have been a big outrage. Letting the guilty walk, it isn't, IN CONTEXT, the big deal here.

4) "Click on the "Post a comment" link. You will see a link to access "newest" posts just above the "Leave your comment" text." I think we can all agree that it's dumb you need to do that.
 

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