(02-06-2018 04:27 PM)tanqtonic Wrote:  it *can* be via the 'conscious disregard'; but not necessarily so.

That is simply incorrect. The difference between gross and ordinary negligence is "conscious disregard".

The real question is, did Clinton know she was violating protocol, and could it be proven that she did so knowingly?

An example in Federal law is in tax code - honest mistake on a tax return vs. deliberate miscalculation. One means you owe more money, the other is a felony.

Here's the problem with all the discussion of intent. Read the statute. You're missing a key point.

Under 793f, the criminal act is causing the material to be placed into an unsecure environment. If you want to postulate that "intent" is implied by "gross negligence" (which is not settled), then the only intent that is required is the intent to commit the illegal act, i.e., to put the classified material into the unsecure environment. You don't have to intend for it to be hacked by the Russians or anyone else.

Was the material classified?
Did you know, or should you have known, that it was classified?
Did you put, or cause it to be put, into an unsecure environment?
Did you intend to put, or cause it to be put, into that unsecure environment?

That's it. Slam dunk guilty. I don't see how the answer to any of those questions can be "no." Do you?

And even if Hillary could answer "no" to any of those questions, there is clearly someone on her staff who could not. Send that person away to Leavenworth for 40. And then you get into the conspiracy section of the law.

I'm suspicious that using the term "gross negligence" in a memo discussing a possible crime is equivocation. It supplants the more pointed term "intent," and implies that the action was mere misjudgment or error. "Gross negligence" more commonly appears in the context of regulatory hearings and civil court cases.

(02-06-2018 05:09 PM)Owl 69/70/75 Wrote:  Here's the problem with all the discussion of intent. Read the statute. You're missing a key point.

Under 793f, the criminal act is causing the material to be placed into an unsecure environment. If you want to postulate that "intent" is implied by "gross negligence" (which is not settled), then the only intent that is required is the intent to commit the illegal act, i.e., to put the classified material into the unsecure environment. You don't have to intend for it to be hacked by the Russians or anyone else.

Was the material classified?
Did you know, or should you have known, that it was classified?
Did you put, or cause it to be put, into an unsecure environment?
Did you intend to put, or cause it to be put, into that unsecure environment?

That's it. Slam dunk guilty. I don't see how the answer to any of those questions can be "no." Do you?

And even if Hillary could answer "no" to any of those questions, there is clearly someone on her staff who could not. Send that person away to Leavenworth for 40.

793f is a bit different. It never mentions "unsecure" storage places. Instead it mentions a "proper place of custody" as well as being "illegally remove" from said proper place. So the question would be whether there could be intent to show that Clinton was intentionally trying to store classified material in an improper place.

IIRC, when she became SOS, the law had not caught up about the inability to use a private server when she started her role. And it also wasn't as if all of the emails she received were classified (especially at the time of receiving them). Had she developed a separate server just for classified documents, I think you would see that intent was obvious. Instead, it's likely classified emails were caught up in a wide net - a negligent action, but as Comey said, not a grossly negeligent one.

I also came across this article that digs into this issue a bit more. It references a 1941 Supreme Court case which deals with this section. And in that decision, Justice Reed basically stated that one needs to intend to get sensitive material into the hands of others, and simply mishandling sensitive material was not sufficient to charge someone with a crime.

https://warontherocks.com/2016/07/why-in...nton-case/

Here's another problem that is getting glossed over because people who aren't familiar with information security and communications security don't know how it works. You don't just get handed a security clearance and start receiving material. There is a background check, and some training that you must complete. In the training you learn that doing exactly what Hillary did is a ticket to Leavenworth for a long time. And negligence is measured by the ordinary person standing, except that a person possessing significant additional knowledge in the subject matter is held to a higher standard.

The problem is that when one is elected or appointed to a political position requiring access to classified materials, that access may need to start immediately, so sometimes the background check or the training gets gundecked a bit. There were articles, can't find them now, but remember reading them, saying that Hillary butted out or slept through some of her training meetings. If she in fact never completed the required training, is she held to the standard of someone who did? Using a "knew or should have known" standard, I think she is. But that may not be the standard.

In any case, editing from "grossly negligent" to "careless" changed the dynamic in Hillary's favor.

(02-06-2018 05:28 PM)OptimisticOwl Wrote:  In any case, editing from "grossly negligent" to "careless" changed the dynamic in Hillary's favor.

Yes, and releasing the memo that the investigation was reopened prior to understanding what those emails were, did the EXACT opposite. That release, just days before the election, had a noticeable impact on the election (538 estimates a 3 to 4% swing in Trump's favor).

Simply doing something that favored one person does not warrant an investigation. If there were multiple data points that suggested the FBI was taking action in a way that benefited Clinton, and that was outside of the norm, then I think it would make sense to open an investigation.

But, as I said before, you have what actually appears to be a director who was doing things he felt were right, regardless of personal politics.

(02-06-2018 05:21 PM)RiceLad15 Wrote:  

(02-06-2018 05:09 PM)Owl 69/70/75 Wrote:  Here's the problem with all the discussion of intent. Read the statute. You're missing a key point.
Under 793f, the criminal act is causing the material to be placed into an unsecure environment. If you want to postulate that "intent" is implied by "gross negligence" (which is not settled), then the only intent that is required is the intent to commit the illegal act, i.e., to put the classified material into the unsecure environment. You don't have to intend for it to be hacked by the Russians or anyone else.
Was the material classified?
Did you know, or should you have known, that it was classified?
Did you put, or cause it to be put, into an unsecure environment?
Did you intend to put, or cause it to be put, into that unsecure environment?
That's it. Slam dunk guilty. I don't see how the answer to any of those questions can be "no." Do you?
And even if Hillary could answer "no" to any of those questions, there is clearly someone on her staff who could not. Send that person away to Leavenworth for 40.

793f is a bit different. It never mentions "unsecure" storage places. Instead it mentions a "proper place of custody" as well as being "illegally remove" from said proper place. So the question would be whether there could be intent to show that Clinton was intentionally trying to store classified material in an improper place.
IIRC, when she became SOS, the law had not caught up about the inability to use a private server when she started her role. And it also wasn't as if all of the emails she received were classified (especially at the time of receiving them). Had she developed a separate server just for classified documents, I think you would see that intent was obvious. Instead, it's likely classified emails were caught up in a wide net - a negligent action, but as Comey said, not a grossly negeligent one.
I also came across this article that digs into this issue a bit more. It references a 1941 Supreme Court case which deals with this section. And in that decision, Justice Reed basically stated that one needs to intend to get sensitive material into the hands of others, and simply mishandling sensitive material was not sufficient to charge someone with a crime.
https://warontherocks.com/2016/07/why-in...nton-case/

By definition an unsecure server would not be a "proper place of custody" so your question would be whether Clinton intended to remove it from a secure place to an unsecure server.

As far as Gorin, the issue raised by the defense was that the statue was vague because Gorin could not determine whether the material was harmful to the US or not. And the scienter argument referenced in the article is addressed to the issue of vagueness. Without scienter the person could not be held with knowledge that the material was harmful to the US.

Here's where that training I mentioned comes in. You get extensive training on what is and is not detrimental to the interests of the US, and to what extent. Therefore the vagueness argument does not apply. That gets to the question I raised earlier, if Hillary blew off the training, do we hold her to the standard of someone who completed it? I don't know the answer to that.

(02-06-2018 04:34 PM)Frizzy Owl Wrote:  

(02-06-2018 04:27 PM)tanqtonic Wrote:  it *can* be via the 'conscious disregard'; but not necessarily so.

That is simply incorrect. The difference between gross and ordinary negligence is "conscious disregard".

The real question is, did Clinton know she was violating protocol, and could it be proven that she did so knowingly?

An example in Federal law is in tax code - honest mistake on a tax return vs. deliberate miscalculation. One means you owe more money, the other is a felony.

all you have done with your example is show a difference based on scienter. deliberate == intent to.

sorry but to conflate gross negligence with intentional disregard of a standard is to say that there is no difference between an intentional standard and that of gross negligence.

you certainly can get to gross negligence through that, but it is not a fundamental necessary path. just ask any plaintiff's attorney....

(02-06-2018 06:07 PM)Owl 69/70/75 Wrote:  

(02-06-2018 05:21 PM)RiceLad15 Wrote:  

(02-06-2018 05:09 PM)Owl 69/70/75 Wrote:  Here's the problem with all the discussion of intent. Read the statute. You're missing a key point.
Under 793f, the criminal act is causing the material to be placed into an unsecure environment. If you want to postulate that "intent" is implied by "gross negligence" (which is not settled), then the only intent that is required is the intent to commit the illegal act, i.e., to put the classified material into the unsecure environment. You don't have to intend for it to be hacked by the Russians or anyone else.
Was the material classified?
Did you know, or should you have known, that it was classified?
Did you put, or cause it to be put, into an unsecure environment?
Did you intend to put, or cause it to be put, into that unsecure environment?
That's it. Slam dunk guilty. I don't see how the answer to any of those questions can be "no." Do you?
And even if Hillary could answer "no" to any of those questions, there is clearly someone on her staff who could not. Send that person away to Leavenworth for 40.

793f is a bit different. It never mentions "unsecure" storage places. Instead it mentions a "proper place of custody" as well as being "illegally remove" from said proper place. So the question would be whether there could be intent to show that Clinton was intentionally trying to store classified material in an improper place.
IIRC, when she became SOS, the law had not caught up about the inability to use a private server when she started her role. And it also wasn't as if all of the emails she received were classified (especially at the time of receiving them). Had she developed a separate server just for classified documents, I think you would see that intent was obvious. Instead, it's likely classified emails were caught up in a wide net - a negligent action, but as Comey said, not a grossly negeligent one.
I also came across this article that digs into this issue a bit more. It references a 1941 Supreme Court case which deals with this section. And in that decision, Justice Reed basically stated that one needs to intend to get sensitive material into the hands of others, and simply mishandling sensitive material was not sufficient to charge someone with a crime.
https://warontherocks.com/2016/07/why-in...nton-case/

By definition an unsecure server would not be a "proper place of custody" so your question would be whether Clinton intended to remove it from a secure place to an unsecure server.

As far as Gorin, the issue raised by the defense was that the statue was vague because Gorin could not determine whether the material was harmful to the US or not. And the scienter argument referenced in the article is addressed to the issue of vagueness. Without scienter the person could not be held with knowledge that the material was harmful to the US.

Here's where that training I mentioned comes in. You get extensive training on what is and is not detrimental to the interests of the US, and to what extent. Therefore the vagueness argument does not apply. That gets to the question I raised earlier, if Hillary blew off the training, do we hold her to the standard of someone who completed it? I don't know the answer to that.

if she blew off training that seems to be a concious disregard of a standard in and of itself

(02-06-2018 06:15 PM)tanqtonic Wrote:  

(02-06-2018 06:07 PM)Owl 69/70/75 Wrote:  

(02-06-2018 05:21 PM)RiceLad15 Wrote:  

(02-06-2018 05:09 PM)Owl 69/70/75 Wrote:  Here's the problem with all the discussion of intent. Read the statute. You're missing a key point.
Under 793f, the criminal act is causing the material to be placed into an unsecure environment. If you want to postulate that "intent" is implied by "gross negligence" (which is not settled), then the only intent that is required is the intent to commit the illegal act, i.e., to put the classified material into the unsecure environment. You don't have to intend for it to be hacked by the Russians or anyone else.
Was the material classified?
Did you know, or should you have known, that it was classified?
Did you put, or cause it to be put, into an unsecure environment?
Did you intend to put, or cause it to be put, into that unsecure environment?
That's it. Slam dunk guilty. I don't see how the answer to any of those questions can be "no." Do you?
And even if Hillary could answer "no" to any of those questions, there is clearly someone on her staff who could not. Send that person away to Leavenworth for 40.

793f is a bit different. It never mentions "unsecure" storage places. Instead it mentions a "proper place of custody" as well as being "illegally remove" from said proper place. So the question would be whether there could be intent to show that Clinton was intentionally trying to store classified material in an improper place.
IIRC, when she became SOS, the law had not caught up about the inability to use a private server when she started her role. And it also wasn't as if all of the emails she received were classified (especially at the time of receiving them). Had she developed a separate server just for classified documents, I think you would see that intent was obvious. Instead, it's likely classified emails were caught up in a wide net - a negligent action, but as Comey said, not a grossly negeligent one.
I also came across this article that digs into this issue a bit more. It references a 1941 Supreme Court case which deals with this section. And in that decision, Justice Reed basically stated that one needs to intend to get sensitive material into the hands of others, and simply mishandling sensitive material was not sufficient to charge someone with a crime.
https://warontherocks.com/2016/07/why-in...nton-case/

By definition an unsecure server would not be a "proper place of custody" so your question would be whether Clinton intended to remove it from a secure place to an unsecure server.

As far as Gorin, the issue raised by the defense was that the statue was vague because Gorin could not determine whether the material was harmful to the US or not. And the scienter argument referenced in the article is addressed to the issue of vagueness. Without scienter the person could not be held with knowledge that the material was harmful to the US.

Here's where that training I mentioned comes in. You get extensive training on what is and is not detrimental to the interests of the US, and to what extent. Therefore the vagueness argument does not apply. That gets to the question I raised earlier, if Hillary blew off the training, do we hold her to the standard of someone who completed it? I don't know the answer to that.

if she blew off training that seems to be a concious disregard of a standard in and of itself

Kinda sounds like gross negligence, doesn’t it?

My bottom line.

You can say what you want about Mueller and Comey and Trump and Strzok and all the rest. But the fact that Hillary is not behind bars says that there’s something rotten somewhere.

(02-06-2018 06:13 PM)tanqtonic Wrote:  

(02-06-2018 04:34 PM)Frizzy Owl Wrote:  

(02-06-2018 04:27 PM)tanqtonic Wrote:  it *can* be via the 'conscious disregard'; but not necessarily so.

That is simply incorrect. The difference between gross and ordinary negligence is "conscious disregard".

The real question is, did Clinton know she was violating protocol, and could it be proven that she did so knowingly?

An example in Federal law is in tax code - honest mistake on a tax return vs. deliberate miscalculation. One means you owe more money, the other is a felony.

all you have done with your example is show a difference based on scienter. deliberate == intent to.

sorry but to conflate gross negligence with intentional disregard of a standard is to say that there is no difference between an intentional standard and that of gross negligence.

you certainly can get to gross negligence through that, but it is not a fundamental necessary path. just ask any plaintiff's attorney....

I'll leave the parsing to you and the attorneys.

The fact remains that intent is a necessary element of the crime. The defense attorney would certainly argue that.

(02-06-2018 06:07 PM)RiceLad15 Wrote:  

(02-06-2018 05:28 PM)OptimisticOwl Wrote:  In any case, editing from "grossly negligent" to "careless" changed the dynamic in Hillary's favor.

Yes

Finally.

Quote:

Simply doing something that favored one person does not warrant an investigation. If there were multiple data points that suggested the FBI was taking action in a way that benefited Clinton, and that was outside of the norm, then I think it would make sense to open an investigation.

We do have multiple data points. They were not all about directly helping Clinton, but they were all about hurting Trump, her opponent. Enough of them to warrant an investigation, and why should anybody who thinks all was done fairly and correctly object to an investigation that would surely show that?

(02-07-2018 12:55 AM)OptimisticOwl Wrote:  

(02-06-2018 06:07 PM)RiceLad15 Wrote:  

(02-06-2018 05:28 PM)OptimisticOwl Wrote:  In any case, editing from "grossly negligent" to "careless" changed the dynamic in Hillary's favor.

Yes

Finally.

Quote:

Simply doing something that favored one person does not warrant an investigation. If there were multiple data points that suggested the FBI was taking action in a way that benefited Clinton, and that was outside of the norm, then I think it would make sense to open an investigation.

We do have multiple data points. They were not all about directly helping Clinton, but they were all about hurting Trump, her opponent. Enough of them to warrant an investigation, and why should anybody who thinks all was done fairly and correctly object to an investigation that would surely show that?

Finally? I never once denied that the outcome of the investigation helped Clinton - in fact, that was a corner stone of my position that the FBI (specifically Comey) was acting in a manner they felt was most just, because they also did things that explicitly hurt Clinton and helped Trump.

Your claim that all actions taken were about hurting trump is ludicrous. Releasing the memo that informed the public that the investigation was reopened because of the Weiner emails in no way, shape, or form, was about hurting Trump.

Heck, even the FISA issue, where Carter Page was survelied, doesn’t actually so acute bias against Trump. Page got on the FBI radar in 2013, well before Trump’s campaign. And the FISA warrant request that has caused such a hullabaloo was granted almost a month after Page publicly indicated that he had left the Trump campaign. That means if the FISA warrant was an explicit attempt to spy on the Trump campaign, as opposed to monitoring an individual with previous connections to a foreign government, who that government had already identified as a target, then the FBI chose a really great target. If the FBI had really wanted to just snoop on the Trump campaign, as opposed to a specific individual who had happened to be involved with it, why not pick a better target, in terms of access?

(02-06-2018 08:58 PM)Frizzy Owl Wrote:  

(02-06-2018 06:13 PM)tanqtonic Wrote:  

(02-06-2018 04:34 PM)Frizzy Owl Wrote:  

(02-06-2018 04:27 PM)tanqtonic Wrote:  it *can* be via the 'conscious disregard'; but not necessarily so.

That is simply incorrect. The difference between gross and ordinary negligence is "conscious disregard".

The real question is, did Clinton know she was violating protocol, and could it be proven that she did so knowingly?

An example in Federal law is in tax code - honest mistake on a tax return vs. deliberate miscalculation. One means you owe more money, the other is a felony.

all you have done with your example is show a difference based on scienter. deliberate == intent to.

sorry but to conflate gross negligence with intentional disregard of a standard is to say that there is no difference between an intentional standard and that of gross negligence.

you certainly can get to gross negligence through that, but it is not a fundamental necessary path. just ask any plaintiff's attorney....

I'll leave the parsing to you and the attorneys.

The fact remains that intent is a necessary element of the crime. The defense attorney would certainly argue that.

i guess you think that intent is an element to negligent homicide as well?

(02-07-2018 10:41 AM)tanqtonic Wrote:  

(02-06-2018 08:58 PM)Frizzy Owl Wrote:  

(02-06-2018 06:13 PM)tanqtonic Wrote:  

(02-06-2018 04:34 PM)Frizzy Owl Wrote:  

(02-06-2018 04:27 PM)tanqtonic Wrote:  it *can* be via the 'conscious disregard'; but not necessarily so.

That is simply incorrect. The difference between gross and ordinary negligence is "conscious disregard".

The real question is, did Clinton know she was violating protocol, and could it be proven that she did so knowingly?

An example in Federal law is in tax code - honest mistake on a tax return vs. deliberate miscalculation. One means you owe more money, the other is a felony.

all you have done with your example is show a difference based on scienter. deliberate == intent to.

sorry but to conflate gross negligence with intentional disregard of a standard is to say that there is no difference between an intentional standard and that of gross negligence.

you certainly can get to gross negligence through that, but it is not a fundamental necessary path. just ask any plaintiff's attorney....

I'll leave the parsing to you and the attorneys.

The fact remains that intent is a necessary element of the crime. The defense attorney would certainly argue that.

i guess you think that intent is an element to negligent homicide as well?

Is there a grossly negligent homicide? We're looking at gross negligence, not negligence.

(02-07-2018 07:47 AM)RiceLad15 Wrote:  

(02-07-2018 12:55 AM)OptimisticOwl Wrote:  

(02-06-2018 06:07 PM)RiceLad15 Wrote:  

(02-06-2018 05:28 PM)OptimisticOwl Wrote:  In any case, editing from "grossly negligent" to "careless" changed the dynamic in Hillary's favor.

Yes

Finally.

Quote:

Simply doing something that favored one person does not warrant an investigation. If there were multiple data points that suggested the FBI was taking action in a way that benefited Clinton, and that was outside of the norm, then I think it would make sense to open an investigation.

We do have multiple data points. They were not all about directly helping Clinton, but they were all about hurting Trump, her opponent. Enough of them to warrant an investigation, and why should anybody who thinks all was done fairly and correctly object to an investigation that would surely show that?

Finally? I never once denied that the outcome of the investigation helped Clinton - in fact, that was a corner stone of my position that the FBI (specifically Comey) was acting in a manner they felt was most just, because they also did things that explicitly hurt Clinton and helped Trump.

Your claim that all actions taken were about hurting trump is ludicrous. Releasing the memo that informed the public that the investigation was reopened because of the Weiner emails in no way, shape, or form, was about hurting Trump.

Heck, even the FISA issue, where Carter Page was survelied, doesn’t actually so acute bias against Trump. Page got on the FBI radar in 2013, well before Trump’s campaign. And the FISA warrant request that has caused such a hullabaloo was granted almost a month after Page publicly indicated that he had left the Trump campaign. That means if the FISA warrant was an explicit attempt to spy on the Trump campaign, as opposed to monitoring an individual with previous connections to a foreign government, who that government had already identified as a target, then the FBI chose a really great target. If the FBI had really wanted to just snoop on the Trump campaign, as opposed to a specific individual who had happened to be involved with it, why not pick a better target, in terms of access?

https://townhall.com/tipsheet/chrisreeve...ssion=true

"So, if Carter Page was acting as a foreign intelligence agent for Russia as far back as 2013, as has been repeatedly implied by mainstream reports, why did FBI agents at the time not see him as such?"

Do this prove anything, one way or the other? Nope, just more confusing evidence. In other words, smoke. In YOUR words, smoke.

Let's have an independent investigation. You can present your logic, and the special counsel can hear all the evidence and clear the smoke. We have a precedent for this action.

Why is a 15 minute meeting with a russian who promises dirt on Hillary so suspicious, while paying Russians for dirt on Trump is so benign? Why not treat them the same?

BTW, Nunez and Gowdy say more to come. Let me know when it reaches critical mass for you.

amazing you are pleading logic - where is the logic behind the collusion theory? I have been asking for it for two years.

Are you all really still talking about Hillary's emails? You know she lost, right?

In any case, it's not like she refused to clap at one of Trump's speeches. You, know, treason.

Anyway, hopefully they'll behave better at our big Soviet-style military parade. Yeah, I know he said "French-style" but we know Republicans hate the French. He must have meant "freedom-style".

(02-07-2018 10:57 AM)JustAnotherAustinOwlStill Wrote:  Are you all really still talking about Hillary's emails? You know she lost, right?

Is losing = pardon? Does failure = innocence?

I see the problem now. Trump succeeded.