One thought on “Podcast #3: The Rule of Law?”

  1. Interesting podcast. A bit of a different take from what I’ve been hearing in other media lately. I suppose I could try to bounce the prevailing view I’ve been hearing off of you for feedback…

    As I understand it, it boils down to the fact that as a legal term “Gross Negligence” is ill-defined, both in law, and in the context of this specific set of circumstances. Most people lump “negligence” and “carelessness” together, but there is a difference (apparently. I’m not a lawyer, so I could easily be wrong.). If I roll my ankle running down the stairs three at a time, that’s carelessness. I did something without paying proper attention to the ramifications. If I were a soldier on watch and I took a break to relieve myself while I was technically supposed to be watching for approaching threats, that would be negligence because I am being lax with, or ignoring, an obligation or duty that I am responsible to uphold.

    This would be relevant, semantically, because in the case of the Secretary of State, negligence is… hazy? Does the SoS have an OBLIGATION to keep all of their communications in certain channels? And, more importantly, is there any way to prove that she was intentionally, actively abandoning a duty or obligation in the course of the e-mail scandal? Which ties back in to your argument, I suppose: A discussion as to whether or not Secretary Clinton was negligent would have to be able to prove willful, knowledgeable failure to uphold a duty in full knowledge of the possible consequences. Which… would be almost impossible, I am told, in this case. There’s simply too much time, too many variables, and too little information for us to ever prove that in a court.

    But, more importantly, the specific thing she is accused of handling with gross negligence in this case is… up for debate? The accusation is that she mishandled information. But, as far as I can tell, the relevant section of our law detailing punishment for this specific crime (18 U.S. Code § 793 f.) requires that violators be shown to: “permit the same [In this case, sensitive documents or government information] 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.”

    In the digital age, the idea of information having a ‘proper place’ is hazy at best. Is the proper place for a classified e-mail safely stored on a government server? What about on the phone of somebody who needs to know the information it contains? What about backed up on several dozen redundant servers to keep it from being destroyed? When our information is no longer ‘placed’ in a physical sense, it’s really thorny to try and argue that moving e-mails around is ‘removing’ them ‘from their proper place.’

    So, I’m told, the problem is two-fold: Seeking indictment would be relying on a poorly defined standard that would likely prove unable to actually secure a conviction, and the law itself is poorly adapted to changing standards of technology and media.

    Which, then, makes what Comey has to say a sort of defeated statement of fact: We know what she did. What she did was careless. If she (and, by implication, anyone else under government payroll) were still employed by a government organization, administrative consequences would be necessary (He did make a distinction between ‘charges’ and ‘consequences’), but since she doesn’t work for the government in this role any longer, it’s impossible to even give her a slap on the wrist.

    On a side note: If you’re looking for interesting introductory music, there are lots of royalty-free options. For example, this channel:

    There’s at least hundreds of videos there, all with links to a site where you can get the audio file for free. And you can use it, provided you give credit to the source you got it from (though, again, I’m not a lawyer, so what ‘credit’ means you might want to look into…). Hopefully it helps, or at least entertains you. I recommend “Plucky Daisy.”

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