More on Hillary Clinton's felonies. She held guilty knowledge to sustain 18 USC Sec. 793(e) charges
Many people have asked, what crimes exactly would the FBI find the former Secretary of State violated? This and previous posts linked below provide a detailed picture of Hillary Clinton's violations of her signed Classified Information Nondisclosure Agreement, and the primary federal statute referenced within it, specifically, the three felony crimes specified at subsections (e), (f) and (g) of 18 U.S. Code § 793 - Gathering, transmitting or losing defense information. https://www.law.cornell.edu/uscode/text/18/793
While Hillary Clinton has characterized it as a "mistake", the evidence shows she set up and operated her email server as an end-run around information security requirements. She signed her security oath on January 22, 2009 and in the the following days received explicit warnings from NSA about the vulnerability to hacking of her hand held device. See, http://www.cbsnews.com/news/emails-show-nsa-rejected-hillary-clinton-request-for-secure-smartphone/
Not only did she continue to use the Blackberry in spite of this warning, she operated it for official Department messaging connected to an uncertified server, which made her communications even more vulnerable to interception. She operated this unauthorized system for the rest of her term in office knowing that she was defying NSA. That provides the element of guilty knowledge, or mens rea, that some courts have held is a requirement to conviction under Sec. 793(e) for unauthorized transmission or retention of classified information.
Subsection (e) makes the following acts a felony. Note that the courts have held there are two types of classified materials referenced, tangible documents and intangible information. The distinction is important, as will be explained below:
(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;
Her actions show general mens rea, or guilty knowledge, that what she was doing could "be used to the injury of the United States." Note that is different from a more specific intent to injure the United States, which is not a requirement under this subsection. Nonetheless, mens rea is a requirement under one line of legal interpretation for conviction for sharing intangible (unstamped) classified information under 793(e). The same line of interpretation distinguishes marked documents from unmarked (intangible) information in the following fashion, according to a government Motion filed in a recent Sec. 793 case: US v Hitzelberger, Case 1:12-cr-00231-RC Document 51 Filed 04/05/13, .pdf
Meanwhile, this same reasoning is reflected in a filing in the Manning case. A Government brief observed on the topic of what it takes the phrase "reason to believe" to mean, as used in Sec. 793(e): http://s3.documentcloud.org/documents/715582/ae-509-government-targeted-brief-reason-to.txt.
required to prove that the accused had reason to believe the
information "could be used to the injury of the United States"
when the accused had unauthorized possession of any "document,
writing, code book, signal book, sketch, photograph, photographic
negative, blueprint, plan, map, model, instrument, appliance, or
note relating to the national defense." See 18 U.S.C. § 793(e). In
other words, the "reason to believe" scienter requirement only
applies to intangible information relating to the national defense,
not the tangible items listed above. See United States v. Kiriakou,
2012 WL 4903319, at *1 (E.D. Va. Oct. 1 6, 2012) ("Importantly, §
793 [e] differentiates between 'tangible' NDI, described in the
'documents' clause ( 'any document, ... or note relating to the
national defense'), and 'intangible' ND I, described in the
'information' clause ('information relating to the national
defense')."
; United States v. Rosen, 445 F. Supp. 2d 602, 612
( E.D. Va. 2006) ("Second, Congress expanded the category of
what could not be communicated pursuant to § § 793(d) and (e) to
include 'information relating to the national defense,' but modified
this additional item by adding a scienter requirement...."
.
However, the courts have differed on the strict scienter requirement for a 793(e) conviction as found in the 2006 Rosen decision. According to the Congressional Research Service: Criminal Prohibitions on the Publication of Classified Defense Information, Jennifer K. Elsea, Legislative Attorney (September 9, 2013):
the Rosen case cast doubt on the district judge’s interpretation).
Furthermore, HRC should have reasonably known that she was violating Sec 793(e) by willfully allowing her email system to be a conduit for the swapping and storage of classified materials in violation of the terms of her Classified Information Nondisclose Agreement signed by her on January 22, 2009, which states at Paragraph 1:
Given the sheer volume of classified materials found on her uncertified server, more than 2000 with 104 originating with her, and that 22 were classified Top Secret, she meets the standards for prosecution under USDOJ and JAG guidelines.
In addition, this pattern of willful evasion of the law in concert with others establishes scienter, or willful intent, for an additional conspiracy charge under 793(g), the next relevant subsection of 793:
Please see previous installments in this series: (Clinton's violation of her signed Security Oath and her Sec. 793(f)(2) violation, failure to report classified information violations of others, (May 2, 2016) http://www.democraticunderground.com/?com=view_post&forum=1251&pid=1883154); and, the original Sec. 793 analysis, "Hillary Clinton's Felony. The federal laws violated by the private server", (August 28, 2015), http://www.democraticunderground.com/1251552653
= new reply since forum marked as read
Ignore list ticks up one. Five shy of the century mark.
Please. 
She's endorsed by people like Elijah Cummings, Maxine Waters, Lilly Ledbetter, Cory Booker, Human Rights Campaign, Equality Pac, CBC Pac, Jim Clyburn, Cecile Richards, Hazel Dukes...
But I guess they've all "dismissed the left," too. 
This is just the death-throws of a group of Hillary haters who are burning their bridges here because thy know that they have at the most, til July 29th to do damage here.
Let them show their their true colors to the us and the Admins.
Note to BSers responding to this post...I wont take the time to respond to you. Have a wonderful day.
If the shoe happens to drop, it's automatic President Trump. Now . . . isn't that hilarious?
Want to join in the betting pool? I will give you ten to one odds of her facing charges or dropping out for "personal reasons" before Memorial Day (with a fifty cent bet on my behalf/$5 for you, with funds going to DU by the loser).
I have several people on this bet already, including a pizza, and am willing to donate $5 total, so will do a max of 10 people. I want to keep it small and friendly -- what say you? My information and prognostication skills against your willful blindness and faith in a Clinton?
And I'm not being sarcastic.
kind of like Col. Flagg.
But objectivity is not what DU's Sanders supporters practice. Your analysis is appreciated.
[hr][font color="blue"][center]A 90% chance of rain means the same as a 10% chance:
It might rain and it might not.[/center][/font][hr]
Under the law, one is not guilty of a crime unless they have the culpable mental state which is also called mens rea. You have to know that the materials being released were classified and intend to release these materials. The material in question were e-mails that were not marked classified but were later re-classified. Most of these re-classified e-mails involve discussions of Clinton staffers about stories in the NYT about drones (which shows that the re-classification process is flawed).
The OP's attempt at a legal theory is that the fact that Sec. Clinton signed a non-disclosure agreement ("NDA" means that no culpable mental state is required. That analysis is simply dumb. In the Petraeus case, the general signed a dozen or so NDAs and the prosecution still had to prove that Petraeus had the culpable mental state. In that case, the binders given to the general's mistress were marked Top Secret and the general knew that the material was top secret. Even then, all of the general got was a slap on the wrist.
In the Clinton case, the material in question where not marked confidential
http://mediamatters.org/research/2015/08/12/myths-and-facts-on-hillary-clintons-email-and-r/204913
Since the referenced 25 June 2015 notification, we were informed by State FOIA officials that there are potentially hundreds of classified emails within the approximately 30,000 provided by former Secretary Clinton. We note that none of the emails we reviewed had classification or dissemination markings, but some included IC-derived classified information and should have been handled as classified, appropriately marked, and transmitted via a secure network. Further, my office's limited sampling of 40 of the emails revealed four contained classified IC information which should have been marked and handled at a SECRET level. [Inspector General of the Intelligence Community, 7/23/15]
The e-mails being discussed were retroactively re-classified. It would be impossible for a DOJ attorney to prove that Clinton had the culpable mental state to violate the law.
The analysis by the OP is the type of amusing analysis one sees from laypersons who do not understand the concepts being discussed. Lawyers enjoy watching laypersons get things wrong and here I admit that I have been very amused.
You've also been a surprising help in goading me to further refine my take on these issues and to do further postings.
the era of SBS' "we're all tired of hearing about your damn emails" is now officially over. and not because of SBS, either.
this issue is key for the Trump campaign, because they don't have a whole lot of recent scandal to work with -- bringing up shit about Benghazi and Rose Law just isn't going to fly anymore. but this email server thing still has legs. i fully expect an avalanche of Republican attack ads targeting at least 3 aspects of this situation:
1. HRC jeopardized national security while serving as Sec. of State by running her own underprotected email server
2. HRC is so obsessed with information control that she felt the need to run her own private email server
3. HRC is so technologically inept and poorly advised that she didn't see the disconnect between #1 and #2.
this is going to hit hard and it's going to hurt. for damage control, HRC will need to have a simple response that addresses all 3 points in under 30 seconds, and it can't mention the FBI or the DOJ or, really, any agency of the Obama administration. referencing prior SoS for precedent will be acceptable at first, but eventually the difference between having an alt. email address and running a private email server will gain emphasis and such defenses won't fly.
without a really tight response, this is going to put a wedge between HRC and ex-GOP "national security moderates" she'd like to win over to form a lasting Democratic center.
by not abusing this during the campaign, SBS gave HRC many months to come up with a fresh answer to these accusations. it needs to rock hard 
, or we'll have an actual problem.
"Before the Democrats lock in their choice for President they might want to know if Hillary Clinton broke the law with her unsecure emails and may be indicted, a question that ex-CIA analyst Ray McGovern addresses."
https://consortiumnews.com/2016/04/30/hillary-clintons-damning-emails
Let Bernie do Trump's work for him against the Democratic presumptive nominee!
Maybe there isn't.
and shes NEVER been charged
ARRESTED
detained
just INVESTIGATED
by REPUBLICANS
She wasnt driven out of politics.
Shes going to be the democratic nominee.
the White House (Adam Pasick & Tim Fernholz October 2015)
http://qz.com/520652/groundwork-eric-schmidt-startup-working-for-hillary-clinton-campaign
"stealthy", not any more-Kick
