What Fresh Hell Is This?

October 17, 2016

Jack Kelly Sunday

Ok - let's get right into this.

In his latest column, the Post-Gazette's Jack Kelly makes a yuge enough factual error to undermine the entire (incidentally false) premise - that Hillary Clinton, due to that whole email thing, is more corrupt than Donald Trump.

Let's go to the core of is argument - the mishandling of the confidential information on some of those emails:
Ms. Clinton and her aides “were extremely careless in their handling of very sensitive, highly classified information,” Mr. Comey said in July. But he didn’t recommend indictments because the former secretary of state didn’t intend to expose U.S. secrets.

Section 793(f) of the Espionage Act punishes “gross negligence” in handling of national defense secrets. Offenders not named Clinton can be sent to prison for up to 10 years. Intent is irrelevant. (If Hillary did intend to disclose our secrets, that would be treason, which is covered by another statute.)
This, it turns out, is incorrect.

Here's Section 793(f) of the Espionage Act:
Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

Shall be fined under this title or imprisoned not more than ten years, or both.
Looks pretty damning, doesn't it.  However in the late 30s, there was a National Security case that bubbled up to the Supreme Court that impacts Comey's decision not to recommend charges against Clinton.

As John Ford wrote at War On The Rocks (he also writes for The National Interest, by the way):
In Gorin v. United States (1941), the Supreme Court heard a challenge to a conviction of a Navy intelligence official who sold classified material to the Soviet Union on Japanese intelligence operations in the United States. In that case, the defendant was charged with selling information “relating to the national defense” to a foreign power. The defendant argued on appeal that the phrase “relating to the national defense” was unconstitutionally vague, so much so that the defendant was deprived of the ability to predetermine whether his actions were a crime.

Justice Stanley Reed wrote the majority opinion and disagreed that the law was unconstitutionally vague, but only on the very narrow grounds that the law required “intent or reason to believe that the information to be obtained is to be used to the injury of the United States.” Only because the court read the law to require scienter, or bad faith, before a conviction could be sustained was the law constitutional. Otherwise, it would be too difficult for a defendant to know when exactly material related to the national defense. The court made clear that if the law criminalized the simple mishandling of classified information, it would not survive constitutional scrutiny, writing:
The sections are not simple prohibitions against obtaining or delivering to foreign powers information… relating to national defense. If this were the language, it would need to be tested by the inquiry as to whether it had double meaning or forced anyone, at his peril, to speculate as to whether certain actions violated the statute.
In other words, the defendant had to intend for his conduct to benefit a foreign power for his actions to violate 793(f).
Which is what Comey said, isn't it?

Took me about 20 minutes to find this.  Perhaps Jack Kelly should have done his homework before simply copying what the rest of the right wing media was writing - if only for the sake of intellectual honesty.

Or, Jack Kelly could have just watched John Oliver from a few weeks ago.

Oliver's take on the email server?

At about 8:40 in, he goes so far as to describe it as "...not good but it's not as bad as it looks."

Then he goes after Donald Trump:
  • Trump's "pathetic" excuse not to release his tax returns.
  • Trump's seeming lack of understanding of what a "blind trust" is.
  • The Trump Foundation's financial misdeeds.
  • Trump University
  • How he's "ethically compromised to an almost unprecedented degree"
And so on.

But the email server looks bad, so....

Oliver's summation:
The point is, this campaign has been dominated by scandals. But it is dangerous to think there is an equal number on both sides. And you can be irritated by some of Hillary's. That is understandable. But you should then be f[beep]ing outraged by Trump's.
Another week, opportunity to do the research that Jack Kelly (or his fact-checkers at the P-G) didn't (or didn't want to) do.

2 comments:

Deplorable Omega Supreme Cuck said...

"In other words, the defendant had to intend for his conduct to benefit a foreign power for his actions to violate 793(f). Which is what Comey said, isn't it? "
Tell that to Kristian Saucier.
Of course like Petraeus, he was dumb enough to plea bargain.
http://www.nydailynews.com/news/national/navy-sailor-hillary-defense-fails-year-prison-article-1.2758486
There’s damn good reason to believe that had Clinton been anyone else, she would have been prosecuted and, if convicted, sentenced to prison. Lesser government employees have enjoyed a vacation at Club Fed for lesser recklessness.

Hutch Bailie Jr said...

How can you run from this https://www.youtube.com/watch?v=5IuJGHuIkzY