(OR: HILLARY AND THE FBI’S VIEW OF THE LAW.)
Remember the scene in the Disney movie THE WIZARD OF OZ where Dorothy figures out what to do with the Red Shoes? She defeated the wicked witch who evaporated leaving her black robe and pointed hat on the ground. That is the scene Rooster sees with Hillary Clinton. The FBI gave Trump the red shoes and he will know how to use them. In fact he would be well advised to wear red shoes and offer this explanation. Can’t you just see him rubbing his shoes, saying something like “Crooked Hillary will disappear.”
The statement released by the FBI has set the stage. Cameras are ready, everyone is in place… silence on the stage, roll the cameras. Even Winston shares this vision. The Director of the FBI, Mr. James Comey, told the world Hillary and her controlled staff were extremely negligent. For undisclosed reasons, he decided not to ask the Department of Justice, with a Lynch women in control, to do anything about it. One might ask,” Why ask a dead man to say grace? “ All Lynch would do is stall and delay, with Obama’s help, and pass the matter beyond the soon to be election. Just in reviewing the FBI suggestion she could take 6 months. A dead end. Better to give the tools to the candidate and others. Properly used, the tools will, like the red shoes, send “What difference does it make” to the evaporation chair.
Now the law. Listening to FBI Comey, and the news pundits something smells bad. What is this clear evidence of intent Comey told us was lacking? Remember Rooster was once a Prosecutor in charge of trials in a large District Attorney office. He and you must know that for every infraction and crime there is a defined intent or state of mine. In Common Criminal law you have Specific Intent, General Intent, and substitutes for intent. One is gross negligence, another is strict liability. In Specific intent the Defendant must have specifically intended the crime and its consequences. In General intent the defendant simply must have intended to do what he or she did, even without thinking about the wrong. Substitutes come in a variety of words and concepts. In Administrative law bureaucrats have created others. Sometimes this legislative nonsense creeps into statutes passed by Congress and others. Point is the words “Clear intent” is not used and is meaningless.
The United States has one law that covers the disclosure of classified information. It is 18 U.S. Code 798. No one has mentioned it. It does not use a common law definition of intent, but one of the historic administrative concepts., “Knowingly and willingly” as the state of mind. Federal law uses the concept often. This is like general intent. All the attorney should have to prove is that the defendant did the acts, i.e.: creating an unsecured server and putting and removing classified information therein. The Supreme Court, on another statute, Bowder vs U.S. 32 US 335, found that knowingly and willingly does not mean that you did the acts with evil or dishonest knowledge. It simply means you did the acts while conscious and awake. I.e.: you knew what you were doing. The only defense is by mistake or accident. If you are found guilty of USC 798, you can be fined (no limit) and put in jail for 10 years. Now what Comey did was to add to “Knowingly and willingly” a specific intent (Clear intent…his word.). He is flat wrong. The U.S. has many other statutes that touch on the subject. For example look at 18 USC 1905 which talks about propriety rights. It is also has a general type intent. Simply publishing, divulging, or disclosing is all it takes. Others include Executive orders, the Espionage Act of 1917, The Atomic Energy Act of 1954, and the Intelligence Identities Protection Act of 1982. Point is our federal law is very specific on this subject. Our enforcement is not, which is why Congress, the President, and others leak information without fear. Rooster could not find one statute that required a “Clear Intent” as stated by the FBI. Moreover the congressional committee and Mr. Comey often referred to 18 USC 1924 which is simply a specific application of 798.
Now most of the news sources say the FBI was relying on Executive Order 13526, and 18 U.S.C. 793 (f) . Again something smells very bad. First Executive Order 13526 is a long discussion of what is and is not classified stuff.. When talking about punishment it adopts the language of U.S.C. 798 above. It specifically says the “Knowingly and willfully” form of state of mind,, which is not a “Clear Intent”. Section 793 (f) is another of the “other statutes” which attempts to cover specific acts. It in no way takes away from 798 which is the primary punishment law. Point is, the FBI director is misleading the nation. Why? Well maybe Rooster is correct when he says Comey wanted this wrong to be up front and on point now and not after the election. Or maybe he simply only thought of Gross Negligence and its history. Apparently he never heard of multiple counts of wrong doing in a criminal case. I think I hear Richard Nixon, scratching on his tomb, to be reheard on his minutes of erased tape, of office conversations.
PROTEST: Fly the Betsy Ross flag. It is the one flag where all the States supported the Constitution. Wc: 748: Rooster Bradford gives up all rights to this article and seeks no compensation for its use. May 2016