Wednesday, August 03, 2016

A Note About My Recent Posts

Gerard N. Magliocca

I don't want to be spending so much time talking about Donald Trump. And I suspect many of you are tired of my posts about him. I would rather be talking about my new book, some exciting recent scholarship, or something else fun. And that time will come again soon.

Nevertheless, I also feel that I cannot fiddle while Rome burns. I always disliked professors who pretended that important events outside of the classroom were not going on and stuck to their lesson plan even when those external events were directly related to their subject.  I don't do that with my students, and I won't do that here. I am very privileged and grateful to have this platform from which to speak, and I will do so as long as a major party nominee for President keeps saying hateful and destructive things. (For example, that the election is "rigged" because some lower federal courts have invalidated voter ID laws in some states.)  Dispassionate and neutral scholarship is important, and I strive to achieve that.  But there are exceptional circumstances.  To quote Justice Hugo Black:

"A judge who does not decide some cases, from time to time, differently from the way that he would wish, because the philosophy he has adopted requires it, is not a judge. But a judge who refuses ever to stray from his philosophy, and be subject to criticism for doing so, no matter how important the issue involved, is a fool."  


That quote is cited here as something he told a clerk once.

You have from time to time voiced opinions on current affairs or things of interest to you. Your posts more than once on this subject were notably scornful. Another person here comes off as a tad overblown and desperate (and scornful).

In your blog posts, some personal flavor has shown, including you clearly not respecting a certain result. This is shown by some degree of cheek. Prof. Kerr has some of that too. But, yes, an extra level of passion is there.

People speaking out against Trump is a good thing. People wetting their pants over Trump is not so good.

I find it somewhat disturbing how many people consider Trump's stylistic offenses more important that Hillary's legal and moral offenses.

Trump jokingly asks the Russians to look through their intelligence archives for the emails they hacked off Hillary's illegal server, and there's more of a media outrage than over... Hillary's illegal server!

And, of course, to divert attention from Hillary's illegal server, the media, all over and in the exact same terms at the same time, (I don't know what they call Journolist's successor, but it clearly exists.) agree to pretend that Trump asked the Russians to hack her emails today, not release some of the 30K + emails she illegally deleted. But that every intelligence service on the planet probably read off her server in real time while she was SoS.

This being just one example.

I've never seen an election in my 57 years when the media made less effort to pretend they were objective. They're letting it hang all out for this one, spending the last of their credibility at an astounding rate. Why do they think they won't need any credibility after this election? Are they expecting a BBC style media fee to keep them afloat? The repeal of CU to give the government the power to suppress any alternatives?

Or maybe, the way the traditional media have been collapsing anyway, they just figure, spend it while it's still worth something.

Anyway, prof, while our politics are different, and I will certainly criticize any errors of fact and/or logic I see in your posts, I certainly appreciate your efforts. You seem a lot less unhinged than some Trump opponents I could mention who post here.


"Trump jokingly asks the Russians to look through their intelligence archives for the emails they hacked off Hillary's illegal server, and there's more of a media outrage than over... Hillary's illegal server!"

1. The official inquiry conducted by a lifelong Republican prosecutor/law enforcement official determined no illegal activity, so there's that that needs to be reiterated constantly.

2. But having said that, it's not like Clinton's email scandal hasn't been covered, probably more than any other story this election cycle, by the MSM. That's a very odd way of carrying water for someone!

3. Every election cycle there are charges from partisans that the other side's candidate has done something illegal and disqualifying. Today partisans point to Hillary's email or Trump's University trial (note the latter has been covered less prominently than the former). That's 'dog bites man.' But Brett willfully seems to want to ignore what's new in this election, or what's 'man bites dog.' Trump's comportment is askew with what many have come to expect as the professional norms of someone running for high office. This isn't just some partisan grenade being lobbed-the previous nominee for the GOP called a special speech to denounce the current one, the party's Speaker of the House seems to have a feud with the current nominee (or maybe better vice versa), a lot of GOP pundits and operatives have declared 'never this guy!', etc. This is unusual. What it taps into, in part, is this: one of the most important but little focused on jobs of a President is to be a representative for the entire nation, to conduct protocol and diplomacy and be the 'face of the nation.' Buffoonery seriously undercuts this function, and with it our place in the international community. And in an increasingly globalized world, that's a big problem.

4. Another problem is the GOP nominees tend to be getting increasingly, well, dumber (the more dressed up word would be anti-intellectual). We had Reagan the actor, we had Palin who had to be protected from the press, and now Trump. Trump literally seems to speak in little five word sentences. He seems to not grasp even basic concepts. There's a huge segment in the GOP who, feeling betrayed by 'top men,' seems to either embrace or at the least not demand that their nominee be someone who is accomplished in the area of intelligence. Those who think intelligence is more important than 'moxie' for the job have some right to be concerned at the thought of this guy getting it.

Did Trump in fact cite the court decisions striking down voter-ID laws as the reason that the election is rigged? I assume that he claims that the election is rigged because he can't face the fact that he might lose legitimately. Therefore, he doesn't need a reason for his claim that it is rigged. I didn't know that he had cited the court decisions as his reason. It doesn't sound like him either to be aware of the court decisions or to cite a reason for anything he believes.

Several legal blogs, including this Blog, with the focus on Trump's candidacy, emulate Chicken Little's "The sky is falling." Perhaps years from now, children of posters and commenters on such posts may ask, "Daddy, what did you do during the Trump candidacy?" We can expect de-forestration from the inevitable flood of books that will be written on the 2016 presidential campaigns and election. In time, even these posters and commenters may look back at their respective posts and comments, perhaps with some embarrassment, depending upon the election results. I have no idea how many eyes view these legal blogs or the demographics of viewers. But it seems like a small universe of the electorate. In fact, this small universe may not even reflect the legal community as a whole. This election is important. In fact all presidential elections since my birth (1930) - and before - have been important. Elections, like pain, are immediate. Memories of past pain may not be that vivid. America has had so0-called constitutional crises in the past, memories of which dim with time.

In my lifetime the 1968 presidential campaign stands out as a potential crisis with the revival of Nixon as the law and order candidate, winning by a relatively narrow margin due to the turmoil over Vietnam (and of course the civil rights movement). I have mentioned on several occasions at this Blog how I consoled a law school classmate more progressive than me that Nixon would not ruin the country. And he didn't, although Nixon came awfully close.

So Trump has established himself as the law and order candidate, channeling Nixon. The history of Nixon and Watergate is not forgotten, although younger voters should be reminded of what Nixon and his Administration did to undermine our democracy. There is much greater transparency today than back in the early 1970s when Nixon started to unravel. Some of us were aware of the political instability of Nixon going back to his congressional campaigns in CA and then as VP to Ike and his 1960 loss to Jack Kennedy and his failed attempt to be Governor of CA. But in 1968 the turmoil of Vietnam (and the civil rights movement) dominated over the history of Nixon's political paranoia. Trump's paranoia and narcissism are no secret from the public, even though his base of older undereducated white men don't care and continue to support Trump.

Every day Trump says ridiculous things and apparently cannot be controlled by the Republican Party. This may not make a difference to his base, but the negative reactions are increasing among Republicans and Independents. Here at this Blog, Brett is the sole 100%er for Trump, with SPAM I AM! a close second despite his fascist charges agains Trump. So are Sandy and Gerard preaching to the choir, a rather limited choir at that? Perhaps they should be more public with their despair/concerns to be more effective with the voting public. I'm not suggesting that the voting public would pay much attention to them, but their effectiveness at this Blog is limited.

There have been a number of interesting posts at this Blog on legal issues involving the Constitution that may have received less attention than they normally would attract, with all this focus on Trump. Maybe the legal blogosphere has gone out of whack. But as I noted in a comment on an earlier thread at this Blog, while Trump may be a turkey, America is not Turkey.

"The official inquiry conducted by a lifelong Republican prosecutor/law enforcement official determined no illegal activity, so there's that that needs to be reiterated constantly."

No, actually that isn't what he determined. He actually stated that laws were broken, (And he grossly understated this, not even reaching most of the laws that were involved.) but that such violations wouldn't normally be prosecuted in the absence of criminal intent, which he couldn't prove here. Which is total BS, but he had to have some basis for reaching the predetermined conclusion he'd been ordered to reach.

But he did specifically say that laws probably were broken.

Brett continues to play with his Legos with his myopic take on the Clinton inquiry, demonstrating himself as a member of Trump's base. Perhaps Brett should take a look at Nick Kristoff's column in the NYTimes today on a national security briefing with Trump as the official Republican candidate. Humor is not far from the truth with Trump.

"He actually stated that laws were broken"

Actual cite. And don't give us your 'the press conference,' give us a link and a time stamp or cite for the actual quote. Because I suspect you misunderstood what was said.

You know, when I lived in Michigan, I was in David Bonior's district. He was the Congressman on the intelligence committee who, after each briefing on Central and South America, would phone the Sandinistas to share what he'd been told.

But he still got his intelligence briefings.

If he got his briefings, then Trump should, and it grates to say it, Clinton, too.

Specifically, Brett, you've demonstrated you don't get a very basic concept in our criminal law: that mens rea, or a certain mindset, which you seem to confuse with intent, is an actual element of an offense, so that when it cannot be shown beyond a reasonable doubt then the crime itself cannot be shown.

And do you get what the word 'potential' means? This is a real problem with you Brett. "Evidence of potential violations" is not the same thing as "stated that laws were broken." Holy Jesus.

Full Definition of potential
: existing in possibility : capable of development into actuality
: expressing possibility;

And it's worse, it's TWICE removed from what you said he said. He doesn't even say 'there's evidence there was potentially a violation,' he says 'there's potentially evidence of a violation!' Literally, there's potential things that could be offered to argue a crime was committed exist'. It's hard to imagine a weaker statement from a *prosecutor*.

Better stated: there's the possibility that things that could be offered to show a crime was committed exist

" he says 'there's potentially evidence of a violation!' "

Good lord, I provide the actual quote, with a link to the official transcript, and you STILL got that wrong? "evidence of potential violations", is not the same as "potentially evidence of a violation".

They actually found the evidence, for multiple violations. Sure, "potential" violations, because there's not going to be a trial, but it wasn't just potential evidence. It was real, they really did find it, not just the potential that it was there.

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BB is right -- overdoing it is a bad idea.

Mr. W. gets the yeoman effort award. Be sure not to wear the wrong color uniform, Star Trek episodes showing that certain colors are bad for your health.

Trump finds a lot he thinks is "rigged" but voting ID (cf. Rick Hasen at Election Law Blog on facts ... but trumpiness is strong in some) have been cited:

Gerard: evertheless, I also feel that I cannot fiddle while Rome burns.

Fair enough.

There are more than ample grounds on which to criticize Donald Trump as being unfit to serve as president and American voters should be discussing those grounds during this election.

My question is why you and every other professor of law here do not hold Hillary Clinton to the same standards?

Mrs. Clinton is obviously and manifestly unfit to serve in any public office for three reasons:

1) The Clintons are utterly corrupt. Ferdinand and Imelda Marcos corrupt. The world's plutocracy and foreign governments will not pay a pair of ex and current public employees from $250k to $1m a speech and allow them to amass a nine figure personal fortune unless they believe they are purchasing very valuable political influence.

2) Hillary Clinton is beyond any reasonable doubt a multiple felon and misdemeanant who violated at least three provisions of the Espionage Act and committed felony obstruction of justice destroying thousands of documents subject to legal investigation. FBI Director Comey admitted to Congress that he possessed enough evidence to prosecute Clinton for her criminal violations of the Espionage Act as written. Corey's excuse for declining to make a criminal referral was "no reasonable prosecutor" in the Obama Justice Department will agree to prosecute her because there is insufficient evidence of an intent element nowhere required by the law. Even if you choose to accept this charade, Mrs. Clinton's "negligence" would disqualify any other public employee from a security clearance necessary to work as POTUS and subjects her to blackmail by the parties who hacked her classified emails.

3) Hillary Clinton is a demonstrated serial and nearly pathological liar. There is almost no subject about which Mrs. Clinton has not lied on multiple occasions, from policy to her various malfeasances to even basic family history. When Fox News Sunday played the Comey statements detailing a small sample of these lies during an interview with Mrs. Clinton last weekend, Hillary actually claimed with a straight face that Comey had confirmed all of her previous public statements on the subject. This woman is either mentally ill or thinks you are so stupid that you will believe her words over your lying eyes and ears.

Trump's complaint that the election is fixed does have some merit in that our corrupt "justice system" ignores Clinton's criminal activity and corruption because she is the Democrat presidential nominee when it would have long ago convicted and likely jailed anyone else who was not part of the political royalty.

Are our professors of law part of that same corruption and are giving Mrs. Clinton a pass because she is the Democrat nominee for president?

If the answer is yes, would you then be supporting and defending Donald Trump if he ran as a Democrat instead of a Republican?


SPAM I AM! is a serial and pathological liar.

Brett, fair enough I got my second iteration of it wrong, but what remains is still something quite removed from what you claimed. 'There are things intended to convince the judge and/or jury of alleged facts material to the case (evidence) that a possible (potential) violation' occurred is not " He actually stated that laws were broken." That's demonstrably wrong or a lie, and you keep repeating it.

Bart, you were answered with my 8:23 comment before you started typing.

Mr. W:

I am addressing my 10:14 am post to the professors.

I already know the lengths to which you are prepared to go in excusing Clinton's dishonesty, corruption and crimes.

I want to see whether professors of law are actually prepared to follow your lead.

SPAM I AM! should not expect to hear from the law professors who wisely ignore the D- student at the back of the blog. But SPAM I AM! has accomplished his mission: trolling. What an amazing quality of life SPAM I AM! has in exchange for giving up a lucrative big law firm future in FL for the now wafting Ganja winds of CO, a quality of life that spews hatred and vileness.

Bart, you thought Obama was/is corrupt, a serial liar, a criminal tyrant. You doubtlessly thought similarly about Kerry, Gore, Clinton. This is usual hyper-partisan behavior. What's being discussed here is something different, where there's a candidate acting so outside of usual professional norms as to have major figures within his own party finding him to be beyond the pale.

"Mrs. Clinton's "negligence" would disqualify any other public employee from a security clearance necessary to work as POTUS and subjects her to blackmail by the parties who hacked her classified emails."

It's a shame that criticism of Clinton gets lost in the manic hyperbole of the hyper-partisans that just loathe her, because once you get past the 'lock her up' stuff this is a serious problem with her imo. It should have been sold in the first like this rather than the over-the-top nonsense that it was wrapped in, because in these terms this is a pretty serious defect in the Democratic Party's nominee.

Ironically, reports are that the public servers was if anything perhaps more at risk. It's a shame that so much effort is spent on Clinton and/or partisan efforts here when there are big picture concerns about security and updating/funding various things that warrant concern.

Mr. W.'s 11:47 comment, let's recall a Buchanan voter, underlines the sort of thing that we have in this election. We have people who on some level people like myself will disagree with on various political things (his take on the Garland nomination, e.g., to me is rather wrong) be alleged to be some sort of deluded liberal by some here because he is against confused opposition of various kinds. But, Megyn Kelly, when not following the FOX line (given that's her job) about MSM etc., being a critic of Trump alone shows this.

The problem just might be that bottom line it simply is not seen as a "pretty serious defect" by the average voter. It concerns them, partially since they don't know all the facts (see, e.g., number who -- contra to the evidence -- supported indictment), but it simply is not a "very serious defect" at the end of the day to enough to matter. So, it has to be taken to 11, which has been going on for around twenty-five years (nationally) by this point with the Clintons.

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Mr. W:

You rely upon Comey as a fig leaf to ignore the evidence of Clinton's crimes.

Comey admitted to Congress, if one of his agents "negligently" handled classified information the way Clinton did, they would be subject to discipline. Comey would never knowingly hire someone who with a demonstrated history of such "negligence."

In reality, negligence is accidentally bringing home classified materials because you did not check to see if they were in your briefcase. Back in the day, my MI commanders constantly instructed us never to bring any classified materials home with us and to do so would result in a courts martial. The MI NCOs would hunt us down if we had not checked the materials back into the secure safe.

What Clinton did over a period of years easily meets the standards of gross negligence required under the law, and very likely meets the intent standard Comey and the Obama Justice Department added to the law.

Once is negligence. Several thousand times is intent.

Unfortunately, the "Clinton for Prison 2016" t-shirts are not based on hyperbole. A plurality of voters are currently prepared to elect a felon.

Mr. W: Bart, you thought Obama was/is corrupt, a serial liar, a criminal tyrant. You doubtlessly thought similarly about Kerry, Gore, Clinton.

Obama is a serial liar and a budding dictator who has unconstitutionally rewritten or provided dispensations from laws of Congress. There is no evidence, so far as I know, that Barry sold influence or violated any criminal law.

Gore and Kerry lied no more than your garden variety politicians. There is no evidence, so far as I know, that they sold influence or violated any criminal law.

Bill Clinton is "an unusually talented liar" (not my quote), a felon who was impeached and disbarred for perjury and obstruction of justice, and the other half of the Clinton influence selling partnership.

As you can see, even by Washington D.C. standards, the Clintons are in a class all by themselves.


Who is one supposed to believe? A lifelong Republican former federal prosecutor/top law enforcement official with a proven history of standing up against his bosses when he thought it was right, or you, with all due respect a guy on the internet who says he's a local defense attorney whose never tried a federal case much less in this area and whose demonstrated a tendency to overstate, jump to erroneous conclusions, etc.., due to his partisanship? A person would be crazy to believe the latter, crazy.


"The world's plutocracy and foreign governments will not pay a pair of ex and current public employees from $250k to $1m a speech and allow them to amass a nine figure personal fortune unless they believe they are purchasing very valuable political influence."

Isn't it common for ex-Presidents and such to get paid big money for speeches?


Mr. W: Who is one supposed to believe? A lifelong Republican former federal prosecutor/top law enforcement official with a proven history of standing up against his bosses when he thought it was right, or you...

Again with the logical fallacy of citation to authority rather than to the evidence...

In any case, you cannot win the citation to authority game, either.

In a series of prior posts, I called your Comey card (a bureaucrat with a long history of standing up to Republican, not Democrat, appointees and elected representatives) and raise with multiple former prosecutors in the press and Congress who shredded Comey's pathetic excuses for declining to recommend criminal prosecution of Hillary Clinton.

Mr. W; Isn't it common for ex-Presidents and such to get paid big money for speeches?

Not when their spouse is serving as a government official and nowhere near the volume and fees of the Clinton operation.

That being said, I am sure that the plutocrats paying former Kings George and George II also believe they are buying influence with the Bush royal family.

This system of paying large ransoms for "speeches" is little more than legalized bribery.

I've rebutted your citations to the evidence before, but citations to relevant authorities are fallacies only for deductive arguments, not inductive ones (logic being another one of those fields you're a bit at a loss in). I'm not saying the conclusion is true because Comey said it, I'm saying Comey is more likely to be correct than you. That's no fallacy, it's common sense.

"raise with multiple former prosecutors in the press and Congress"

Haha, you pointed to Trey Gowdy, also not and never has been a federal prosecutor. I answered with several GOP experts in the field.

You've got nothing, nothing but your partisanship and we've a demonstrable record of that leading you to some downright laughable conclusions.

"Not when their spouse is serving as a government official"

Hmm, what do you call it when the employer of a government official's (say a US Senator running for President) spouse, underwrites a massive loan to the official?

"This system of paying large ransoms for "speeches" is little more than legalized bribery."

A system of bribery I don't recall you mentioning when W Bush was President and his father, mother and brother were getting paid bunches of thousands to millions to make such speeches.

Bribery sounds bad. Compelling state interest level bad.

Does anyone support regulating funding in this area to some degree to address it somehow? Perhaps, even wrote articles and books (perhaps even a blog, with expertise in the field) on how this would be not only allowed in various respects but faithful to the overall principles of the U.S. Constitution and longstanding U.S. law/practice?

Other than people like Zephyr Teachout and Rick Hasen. Pretty sure there is at least one. If only if one candidate supports that sort of thing somehow.

Mr. W:

To refresh your evidently limited memory:

Our CO Congress critter and former DA Ken Buck arguably did the best job dismantling Comey's reasoning:


Bart, we've been over those before as to the substance (or lack thereof I should say), but let me just now note that the authors you point to Trey Gowdy, Ken Buck and Andrew McCarthy were, respectively, a local prosecutor and assistant US attorneys. Them questioning the conclusion of former actual US Attorney (and deputy AG) Comey is like a AAA manager and two assistant MLB hitting coaches questioning an MLB manager's judgment.

Mr. W:

Do you think that the US Code is written in a secret language that only a select priesthood annointed by God can read?

Criminal law is one of the most straight forward practices. The laws are set out in statute with specific elements, rather than a common law collection of often conflicting subjective standards.

Lay jurors manage to understand and apply federal criminal law and so can you, Stop being willfully obtuse.

You could say the same about baseball. Doesn't the average fan usually get what's going on? The rule book is written in English.

But of course there's a looooot more going on in baseball games than most layperson's understand. Actual players and coaches shake their heads and smile when armchair quarterbacks (or pitchers in this case) pontificate in formalistic ways as if they knew what was going on. And, to keep my analogy, only a fool would generally go with the advice of a AAA manager or MLB hitting coach over that of a MLB manager. To stretch the metaphor to include you, that would also apply to the batboy ;)

And law is much more complicated than baseball.

I mean, look at what you consider slam dunk legal thinking:

"Once is negligence. Several thousand times is intent."

It's easier to poke a hole in this than in a balloon.

If a person doesn't fully understand how something works, then using it a certain wrong way can easily be neither negligence or intent. And you yourself have posted evidence that suggests Clinton didn't fully understand much about the internet works, which, as I noted with my Ted Stevens example, is common among older people (heck, any advanced IT person would shake their heads at us here I imagine if we thought we understood how it all really works).

You just don't have anything on the substance or on authority. You're going with your partisanship, and we've seen where that leads you before (polls looking great for McCain, predicting a Romney win, etc).

Ken Buck played football.

SPAM I AM! informs us as 4:32 PM:

"Criminal law is one of the most straight forward practices. The laws are set out in statute with specific elements, rather than a common law collection of often conflicting subjective standards."

What he fails to mention is the extensive criminal law practice of plea bargaining arrangements between prosecutors and criminal defense attorneys. How mostly straight forward practice is that with such specific statutes that SPAM I AM! claims do not have subjective standards? Add to this the disadvantages of criminal defendants because of income inequality who might not be able to afford competent counsel. In any event, SPAM I AM! is not very straight forward.


The vast majority of all legal matters settle without trials.

Anything decided by human beings by definition has some measure of subjectivity. Criminal law and all other statutory law has less than subjectivity than common law.

Between two competent attorneys, the facts usually determine the outcome of a trial. Where an good attorney will benefit you is in plea negotiations.

Do you have a point or are you just venting?


No, I'm not venting. Rather I'm pointing out SPAM I AM! has no point to make, and in response has watered down his original attempted point. As a rural DUI defense lawyer, SPAM I AM!'s concepts on criminal law have little value. I trust he's not claiming by the backdoor in making pleas deals for his alleged drunk clients his legal competency, as the economics of such a practice lessen BUI defense counsel's preparedness to actually go through a full blown trial. As to the "facts" being determinative, some of these "facts" consist of the economics on both the prosecution and defense side, not to mention again the problems for indigent defendants and defendants lacking funds to engage competent counsel.

And in SPAM I AM!'s case, it should be kept in mind that by making plea deals, SPAM I AM! can spend more time tolling at this Blog. Perhaps that trolling is the quality of life sought by SPAM I AM! in leaving a lucrative big law firm in FL for Co.

Mr. W: You could say the same about baseball. Doesn't the average fan usually get what's going on? The rule book is written in English...And law is much more complicated than baseball.

Just the opposite. Your average criminal law has a fraction of the variables of a single duel between a pitcher and a hitter in baseball.

The crimes which Clinton committed have 4-5 elements, most of which are easy to prove like identity of the defendant, classification, storage, and approval for the storage. The only real issue for the jury in these cases is the existence of mens rea.

Jurors by instruction and instinct will apply their own life experiences to mens rea. I would not want to be the defense attorney making your argument to a jury that a technocrat with years of government service who repeatedly admitted in public that she knew the rules of classification, was briefed on the rules of classification, signed a detailed agreement to abide by those rules, lived on her Blackberry and had a personal IT assistant was actually the national security and tech equivalent of Mr. Magoo.

I am tired of the constant recycling of the anti-Clinton talking points re her emails, when they mostly don't hold any water. Read the damn statute, 18 USC sec. 793. It is not at all clear that what HRC did is even covered by the statute. The law is not about "classified" information. Mostly it is about stuff that you could take home in a briefcase, and the removal of the stuff from where it belongs and/or passing it on to a foreign government agent. And the stuff has to be something pertaining to the national defense - and I don't think emails about scheduling diplomatic phone calls that happen to have been marked with a (C) fall into that category. Oh yes, all but one of the violations in sec. 793 DO expressly require intent, although 793(f) requires only gross negligence - In the custodianship of national defense tangible records, and the only arguable intangible mentioned is "information." Normally I would try to tighten up the foregoing, but it's late and I'm tired. Bottom line is I can't for the life of me understand how all these HRC critics go on and about the emails, without regard to what 18 USC sec. 793 actually says.

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The pattern jury instructions for 18 USC 793(f)(1) are:

Title 18, United States Code, Section 793(f)(1) makes it a crime to allow defense information to be lost or stolen through gross negligence. For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt:

First, that the defendant had been entrusted with or had lawful possession or control of;

Second, 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;

Third, that the defendant permitted the above material to be removed from its proper place of custody or delivered to anyone in violation of the defendant’s trust, or to be lost, stolen, abstracted, or destroyed; and

Fourth, that the defendant did so through gross negligence.

The national defense information in Clinton's emails falls under the category of document, writing or information.

Clinton sent the information to her server, her IT company's servers, her attorneys, and various uncleared parties receiving the emails.

Here is a good analysis of Clintons violation of this provision of the Espionage Act:

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Per Shag's pet nickname for another commentator, it looks like some spam (small "s") clean-up has been done. Appreciation for the cleaning crew.


Cue to cleaning crew: Next, the capital "S."

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