In this context each of these formulations appear to share a concern more about the motive of the accused to accomplish some specific purpose by violating the law, rather than looking to the intent simply to violate a law. Intent is an element of a criminal offense, but motive -- with rare exceptions -- is not. Comey has let Clinton off because he did not find evidence of a motive sufficiently evil by his judgment, even though under the relevant statutes motive is not even an element of the crime that needs be proven at all.
There is evidence, of course, that Clinton did reveal her motive by saying to a confidant, "I don't want any risk of the personal being accessible." This is evidence of her intent to make her own rules rather than to follow the DoS rules for her communications. Her publicly e xpressed motive for having a separate server and risking that the nation's secrets entrusted to her may be "accessible" to foreign countries and hackers, along with "the personal," was her own convenience. Clinton said she wanted to use only one communications device, a somewhat less suspicious motive than an unusual obsession with secrecy which suggests questions about whether she might be hiding from the public (although not from hackers) information as important to her as the nation's secrets. But that motive was shown by Comey's sworn response to one of Gowdy's questions to be a lie, because the FBI found she actually had used more than one device. That sworn testimony contradicted Clinton's convenience argument that she wanted to have the personal and the public communications all on one device. Lying about her motives is yet further evidence of intent, as the former prosecutor Gowdy pointed out. One lacking any intent to break a law would not need to invent motives for breaking the law, to disguise other motives.
Comey's use of the term "willfully" in the above "precedent" quote, as if it required some proof of motive, or specific intent is outdated. The Supreme Court long ago rejected the idea that, without more, the term "'willfully' " requires proof of any motive other than an intentional violation of a known legal duty. United States v. Pomponio, 429 U.S. 10, 11-12, (1976).
It is not necessary to parse Supreme Court decisions to understand the difference between motive and intent, since the distinction is embedded deeply in criminal law. A popular 19th century handbook, for example, stated quite clearly that "motive with which an act was done is immaterial in deciding the question of criminality. A crime can be committed with a good motive ..." "Motive may " sometimes be shown in evidence; but it is merely as evidence of intent. Motive must not be confounded with intent." May's Criminal Law (Beale, ed., 2d Ed.: 1893) 18.
Comey, in violation of these black-letter law principles, precisely did "confound [motive] with intent." In saying that Clinton lacked sufficient criminal intent, what he was actually saying was that she did not have the kind of motive that he himself found sufficiently offensive to prosecute her violation of the law. His argument was that the unprecedented nature of the motives for a Secretary of State to commit the crime of systematically mishandling the nation's secrets about foreign affairs entrusted to her was an excuse for exonerating the crime. It was not Congress that created such a hierarchy of motives in the relevant statute, but rather the Executive Branch, on delegation to the FBI, which rewrote the law to insert a motive element of the crime in order to achieve its political purposes.
Intent is Presumed
Even more important than Comey's deliberate confusion of intent with motive -- a clear and fundamental violation of law -- is his view of the quantum of evidence needed for its proof. Intent, once properly disentangled from motive, is nowhere near as difficult to prove as Comey wants us to believe. Again, it has been long established that, "one [who] does an unlawful act " is by the law presumed to have intended to do it, and to have intended its ordinary and natural consequences." Id 19 When Clinton arranged to have her public business conducted on a private email server in her basement without the permission and against the rules of the State Department, and therefore in violation of a number of federal laws, -- that act alone was sufficient to prove the intent element of the crime, as it would be for any mentally competent, sane, adult. Even if the kind of ignorance of the requirements for dealing with the nation's secrets that persuaded Comey about Clinton's motive were even believed by a jury, normally ignorance of matters like the law is not a defense.
There are some obvious exceptions to this rule, such as hate crimes, civil rights violations, and treason where motive is an express element of the crime, and some less obvious exceptions where " Congress may decree otherwise" by expressly adding a "willful" provision for " not inevitably nefarious' regulatory offenses, such as involving taxation or currency structuring. See Ratzlaf v. United States , 510 U.S. 135 (1994). Neither has Congress created such a motive element nor are the laws intended to protect government interest in the security of its communications a neutral regulatory measure.
At least one writer who offers legal credentials as authority for political opinion has contended that the FBI's decision to exonerate Clinton is justified by "a legal concept called mens rea. As a general rule, most crimes require prosecutors to prove that an individual acted with a particular state of mind before they can be convicted of a specific crime." First, this statement is misleading to the extent it suggests that "most crimes" require specific intent, or motive. As mentioned, very few crimes do. For "most crimes" the intent is presumed from the illegal act. Second this writer, like Comey, limits his analysis to laws involving classified information, though other laws listed below were also violated that go beyond just classified information. This writer thus continues "She had to have acted with knowledge that specific information was classified when it was transmitted. There is little, if any, evidence that Clinton possessed this state of mind." This statement can only be called nonsense in light of the description of the general presumption of intent from the illegal act of routing materials that would inevitably include classified materials through an insecure server. No such specific information about any one particular communication was necessary. Executive Order 13526, Sec. 1.4(d) (2009) defines "classified" as information relating to "foreign relations or foreign activities of the United States" which "could reasonably be expected to cause identifiable or describable damage to the national security." Almost any information that a Secretary of State would be handling could have such an impact, some more credibly than others, since any " foreign government information is presumed to cause damage to the national security ."
Comey was unable to disagree with Rep. Chaffetz' observation that Clinton would reasonably expect to be communicating classified information through her unsecured server on a regular basis. "She's not the head of Fish and Wildlife."
Unlike the Espionage Act, 18 U.S.C. 793(a) , which applies to anyo ne and not just public officials, the law governing Clinton's emails, for example 793(f), does not require a specific motive that the mishandled information was "to be used . . . to the advantage of any fo r eign nation." It only needed to relate to national security. Moreover neither statute mentions classification. The statute concerning classification is 18 U.S.C. 1924 which applies when " an officer, ...of the United States ... by virtue of his office ... becomes possessed of documents or materials containing classified information ... knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location." Clinton did not have "authority" for removing her materials from the DoS communications system and did intend to retain them at an unauthorized location, which she did until she was forced to return them nearly two years after she left office.
No Precedent, or Bad Precedent
Gowdy concluded his questioning by attacking the lack of precedent excuse that Comey gave for recommending against prosecution,. Lack of precedent resulted from the fact that no prior Secretary of State had systemically removed their communications including the nation's secrets from the State Department to her basement where they were insecure. Over their lifetime of scandals and corruption, such as the engine for global conflicts of interest labeled "The Clinton Foundation," the Clinton's have tended to break new ground. The fact that there are no precedents for Clinton's particular motive of secrecy was the result of how extraordinary Clinton's conduct was.
Both Gowdy and Chaffetz turned the claim around suggesting , instead of lack of precedent being an excuse not to prosecute, that Comey was making bad precedent by failing to prosecute on the ground of lack of intent.
Artificially limited scope of investigation
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