{"id":213908,"date":"2016-07-05T17:24:02","date_gmt":"2016-07-05T21:24:02","guid":{"rendered":"http:\/\/172.24.32.11\/daily\/2016\/07\/05\/why_does_hillary_s_lack_of_proven_intent_matter_in_the_eyes_of_the_law_\/"},"modified":"2017-07-10T11:05:44","modified_gmt":"2017-07-10T15:05:44","slug":"why_does_hillary_s_lack_of_proven_intent_matter_in_the_eyes_of_the_law_","status":"publish","type":"post","link":"https:\/\/www.rushlimbaugh.com\/daily\/2016\/07\/05\/why_does_hillary_s_lack_of_proven_intent_matter_in_the_eyes_of_the_law_\/","title":{"rendered":"Why Does Hillary\u2019s Lack of Proven Intent Matter in the Eyes of the Law?"},"content":{"rendered":"

\"Listen<\/a><\/p>\n

RUSH:\u00a0 Here we are back to the intent again. Jeffrey Toobin, well-known leftist and liberal Democrat, legal analyst over at CNN.\u00a0 And he, of course, was brought in immediately when Comey finished his press conference to tell us what we had just seen.\u00a0 And Kate Bolduan said, “So, Jeff, what\u2019s your big take-away from this?”<\/p>\n

TOOBIN:\u00a0 It\u2019s an enormous relief for Hillary Clinton and her campaign!\u00a0 This was a dagger aimed at the heart of her campaign, and she has avoided being charged.\u00a0 Simple as that.\u00a0 I also think it is worth focusing on what Director Comey said about the nature of these sorts charges.\u00a0 These cases have only been brought when there has been knowing and intentional violation of the rules of classified information.\u00a0 Here, the issue of intent is critical.\u00a0 She has said publicly — undoubtedly she said in her interview — that she never intentionally disclosed classified information.\u00a0 The FBI found nothing to refute that.\u00a0 And that\u2019s why she wasn\u2019t charged.<\/p>\n

RUSH:\u00a0 Man, oh, man! You know, isn\u2019t it interesting how the whole issue of intent seems to be relevant when it involves Democrats in government?\u00a0 So does this mean that they discovered that Petraeus intended to share classified information with his mistress and that that\u2019s why they got him?\u00a0 That\u2019s why they got him, because he intended to imperil the security of the US?\u00a0 Comey said that she was sending out top secret emails that were both marked and unmarked.\u00a0 How can you not know?\u00a0 How can you be so ignorant?\u00a0 Is this a defense?\u00a0 Well, in Hillary\u2019s case, yeah.<\/p>\n

I guess she\u2019ll be as ignorant as the day is long if it avoids an indictment or charges, \u2019cause at the end of the day the bottom line\u2019s what counts, and she\u2019s scot-free here.\u00a0 But, for crying out loud, how can somebody eminently qualified to be secretary of state not know what she\u2019s doing?\u00a0 Is that gonna be the defense?\u00a0 If you listen to Toobin here, it sounds like that\u2019s what they\u2019re gonna hang their hat on.\u00a0 Well, you know, Comey couldn\u2019t find any evidence that she meant to do this.\u00a0 Really?\u00a0 That\u2019s the positive?\u00a0 That\u2019s what\u2019s supposed to relieve us of any concern?\u00a0 Oh, the fact is that she did send classified does data, but she didn\u2019t mean to! That makes it okay; that makes it all better.<\/p>\n

How many times have you heard…?<\/p>\n

I know this might be a specific case, and even though my dad was a lawyer, I\u2019m not, and I probably will be corrected on this. But it just seems to me that we hear all the time that lack of intent is no shield. “It doesn\u2019t matter whether you intended to do this or not. You still did it.” I can\u2019t tell you number of times I\u2019ve heard people say that and had people explain to them, “The fact you didn\u2019t know… Ignorance of the law, the fact he didn\u2019t intend it? Sorry, sir. It\u2019s of no concern. You committed the act.” How could she not…? This whole business of intent… “Well, I didn\u2019t intend to send classified data!”\u00a0 Well, who would admit that they ever did?<\/p>\n

Anyway, that\u2019s what I said.<\/p>\n

This case is not over in the political sense, and it\u2019s gonna require some work to keep up.<\/p>\n

BREAK TRANSCRIPT<\/p>\n

RUSH:\u00a0 I checked the relevant statute here during the break, and at first I thought it doesn\u2019t say anything about intent. And I kept reading, and it does.\u00a0 The statute it involved here, 18 US Code 793: “Gathering, transmitting or losing defense…” It does mention intent, so it is required as part of this particular statute.\u00a0 And I just wanted to confirm that.\u00a0 Still weird.<\/p>\n

BREAK TRANSCRIPT<\/p>\n

RUSH: But back to McCarthy here.\u00a0 “There is no way of getting around this: According to Director James Comey –” and he discloses that Comey is a former colleague and longtime friend.\u00a0 Andy knows Comey.\u00a0 Andy knows Pat Fitzgerald.\u00a0 And, to get it all on the table, Andy McCarthy<\/a> and Pat Fitzgerald together tried the blind sheik.\u00a0 They go back a long way, so there is personal knowledge as well here.\u00a0 Victoria Toensing, by the way, who\u2019s the wife of Joe diGenova, who was the first to say the FBI had the goods. Remember that way back, a couple, three four months ago, diGenova <\/a>came out and said he\u2019d been talking to people in the FBI, they\u2019ve got evidence and if she\u2019s not indicted, there are gonna be so many people down in the dumps they\u2019re gonna resign.\u00a0 Remember that?\u00a0 I do.<\/p>\n

<\/a>And I thought at the time, “Well, that\u2019s a big stretch.\u00a0 To say that now, there must be something to it. If you\u2019re gonna be a public commentator, go out on a limb with something like that, that they\u2019ve got the goods on her, that it\u2019s open, shut, slam dunk, and that if there is not an indictment, that a lot of investigators at the FBI are gonna throw their hands up and quit, that\u2019s what diGenova said.\u00a0 Now, I don\u2019t recall if he said if Comey doesn\u2019t recommend charges they would — He might have said that as well.\u00a0 I\u2019ll have to go back and check.<\/p>\n

But his wife is Victoria Toensing.\u00a0 And was this a tweet?\u00a0 Oh, it\u2019s an email.\u00a0 She said: “Comey brought in Fitzgerald for the Scooter investigation, and they\u2019re friends as they were prosecutors in New York together.” So she\u2019s making the case that Comey and Fitzgerald are good buddies, and both were said to be clean and pure as the wind-driven snow, above the law, you can totally trust \u2019em, straight shooters and all that.\u00a0 That\u2019s Victoria Toensing.\u00a0 I\u2019m just reporting.\u00a0 All kinds of stuff\u2019s rolling in here, folks.\u00a0 There are a lot of people, there are a lot of people, like diGenova, they threw it all out there. They pretty much told us that the goods are there, the FBI got the evidence, and if there\u2019s no indictment, well, you\u2019re gonna see mass resignation and so forth.<\/p>\n

So the point is, a lot of people, despite what I warned \u2019em, a lot of people thought that today was going to be bring the announcement of an indictment. Well, a recommendation that charges be brought.\u00a0 So Andy here disclosing that Comey\u2019s a buddy, former colleague, and a longtime friend.<\/p>\n

Hillary Clinton checked every box, there\u2019s no way of getting around this, and according to what Comey said, “Hillary Clinton checked every box required for a felony violation of Section 793(f) of the federal penal code (Title 18): With lawful access to highly classified information she acted with gross negligence in removing and causing it to be removed from its proper place of custody, and she transmitted it and caused it to be transmitted to others not authorized to have it, in patent violation of her trust.” Yes.\u00a0 Amen.\u00a0 Who cares about intent; what did she say actually do?\u00a0 I mean, that\u2019s the common sense reaction here.<\/p>\n

You know I heard Toobin on CNN\u00a0 (paraphrasing), “Well, the way she got off the hook here is, according to the FBI director, she didn\u2019t intend to do anything.” Well, when does that start mattering?\u00a0 This is my intelligence guided by experience.\u00a0 When does that start mattering all of a sudden?\u00a0 I had no idea that even at that moment McCarthy was preparing his piece.<\/p>\n

“Director Comey even conceded that former Secretary Clinton was ‘extremely careless\u2019 and strongly suggested that her recklessness very likely led to communications (her own and those she corresponded with) being intercepted by foreign intelligence services. Yet, Director Comey recommended against prosecution of the law violations he clearly found on the ground that there was no intent to harm the United States.”<\/p>\n

You go back, we got the sound bites coming up, too, of Comey when you listen from the beginning, you think my gosh, it sounded serious when he started out. Did you hear it all from the beginning in there, Mr. Snerdley?\u00a0 It sounded serious.\u00a0 I mean, my first reaction, my gosh, I was wrong.\u00a0 He\u2019s got the goods and is gonna proceed and lay it out.\u00a0 And as it went on, that clearly was not what was gonna happen.<\/p>\n

“In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require. The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing. The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence.<\/p>\n

“I would point out, moreover, that there are other statutes that criminalize unlawfully removing and transmitting highly classified information with intent to harm the United States. Being not guilty (and, indeed, not even accused) of Offense B does not absolve a person of guilt on Offense A, which she has committed. It is a common tactic of defense lawyers in criminal trials to set up a straw-man for the jury: a crime the defendant has not committed. The idea is that by knocking down a crime the prosecution does not allege and cannot prove, the defense may confuse the jury into believing the defendant is not guilty of the crime charged.<\/p>\n

“Judges generally do not allow such sleight-of-hand because innocence on an uncharged crime is irrelevant to the consideration of the crimes that actually have been charged. It seems to me that this is what the FBI has done today. It has told the public that because Mrs. Clinton did not have intent to harm the United States we should not prosecute her on a felony that does not require proof of intent to harm the United States.”<\/p>\n

In other words, there are two statutes at play here.\u00a0 One requires intent; the other does not.\u00a0 The statute that does not require intent is enough, but they\u2019re not using it.\u00a0 They\u2019re relying on some other statute that does require intent, and they\u2019re adding that to the statute that doesn\u2019t, in a sense, as a means of protecting her.\u00a0 That\u2019s what the FBI\u2019s done today.\u00a0 It has told the public that because Mrs. Clinton did not have intent to harm the US we should not prosecute her on a felony that does not require proof of intent to harm the US.<\/p>\n

“Meanwhile, although there may have been profound harm to national security caused by her grossly negligent mishandling of classified information, we\u2019ve decided she shouldn\u2019t be prosecuted for grossly negligent mishandling of classified information. I think highly of Jim Comey personally and professionally, but this makes no sense to me. Finally, I was especially unpersuaded by Director Comey\u2019s claim that no reasonable prosecutor would bring a case based on the evidence uncovered by the FBI.<\/p>\n

“To my mind, a reasonable prosecutor would ask: Why did Congress criminalize the mishandling of classified information through gross negligence? The answer, obviously, is to prevent harm to national security. So then the reasonable prosecutor asks: Was the statute clearly violated, and if yes, is it likely that Mrs. Clinton\u2019s conduct caused harm to national security? If those two questions are answered in the affirmative, I believe many, if not most, reasonable prosecutors would feel obliged to bring the case.”<\/p>\n

I was gratified to see this piece that Andy wrote because this intent still has me buffaloed.\u00a0 Who cares if she intended to put US national security at risk?\u00a0 Who does?\u00a0 But the fact of the matter that the statute says gross negligence.\u00a0 Gross negligence and lack of intent are the same thing.\u00a0 Gross negligence, if you\u2019re just so willfully unaware, if you don\u2019t care, if you are so unattached that you are not aware what you do, that\u2019s gross negligence.\u00a0 That\u2019s the statute.\u00a0 How can you intend not to dare?\u00a0 How can you intend to be negligent?\u00a0 You just are.<\/p>\n