Jimmy Higgins
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So he doesn't call it that because otherwise he'd need to recommend charges, therefore she is guilty of what he didn't say she was guilty of?
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Emails - the gift that won't ^&%$$^$^&*! stop giving
- Thread starter Don2 (Don1 Revised)
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Achwienichtig
Member
First of all, you keep using the terms "guilty" and "not-guilty," as though this were a trial and Comey's recommendation were a verdict. The only people who can decide if HRC is guilty or not is a jury.
Comey actually did not address gross negligence. What he did make clear what the HRC's actions were not intentional breaches of protocol. However, he also said that she should have known better. He said he would not recommend indictment. For your information, a non-recommendation of indictment is not a not-guilty verdict.
What I am saying is that Comey's descriptions of HRC's actions are very close to a description of what gross negligence is. You can decide for yourself whether they match or not. But you don't get to blow it off as if the answer were obvious without any debate.
Don2 (Don1 Revised)
Contributor
http://www.cnn.com/2016/07/05/politics/fbi-clinton-email-server-comey-damning-lines/
I think it IS gross negligence UNLESS gross negligence is a specific legal term with a specific legal meaning. The words themselves in their plain meaning are otherwise quite the same as "extremely careless" as described by Comey.
As for not indicting, Comey for whatever reason concluded (or says he concluded) there should not be charges. That's prosecutorial discretion, not necessarily logically an indication that Hillary is not guilty of any crime. Comey could have concluded that the whole State Department would be brought down by going after Clinton and that it was not worth it overall OR maybe the end result would be a slap on the wrist so not worth it OR the consequences would be too much for what was actually unintentionally done OR whatever, ...
I think it IS gross negligence UNLESS gross negligence is a specific legal term with a specific legal meaning. The words themselves in their plain meaning are otherwise quite the same as "extremely careless" as described by Comey.
As for not indicting, Comey for whatever reason concluded (or says he concluded) there should not be charges. That's prosecutorial discretion, not necessarily logically an indication that Hillary is not guilty of any crime. Comey could have concluded that the whole State Department would be brought down by going after Clinton and that it was not worth it overall OR maybe the end result would be a slap on the wrist so not worth it OR the consequences would be too much for what was actually unintentionally done OR whatever, ...
Jimmy Higgins
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I haven't blown anything off. I'm saying that the term "grossly negligent mishandling" isn't used by the FBI while the National Review piece does use that term. The term, as you indicate, has a specific legal meaning.
I think what she did was wrong, against the rules, unethical, but the results of what she did are no where near the sphere of what other crimes have been committed in the Executive Branch in the last forty years.
Achwienichtig
Member
In terms of executive branch crimes, I will agree 100% that there have been much worse. And if she's elected, I'm sure she'll do much worse herself. That's kinda why I was looking for an indictment.
Jimmy Higgins
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Worse than Nixon conspiring with the North Vietnamese, Watergate, alleged electoral Iran conspiracy, Iran-Contra, run up to Iraq, Iraq itself, torture protocol?
Clinton can and will likely have some self-serving decisions, but the idea she'll beat the Republicans in the world of Executive Branch crimes seems quite laughable.
Don2 (Don1 Revised)
Contributor
I misinterpreted that at first, too. No, he meant worse than the email scandal. He's right. She will do worse because she's been wrong on things like Libya and Iraq. She hasn't really learned from her mistakes.
Jimmy Higgins
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So why don't we have troops in Syria then? And wasn't Libya a French thing?
Colonel Sanders
Veteran Member
That really is the right way of putting it.
He went overboard on trying to make a big deal of it, but the fact is that there's no recommendation to indict because they can't prove all of the elements of a crime. Any punishment for Hillary would have to be meted out at the administrative level.
But man, my Trumptard acquaintances and family are acting like she just got away with beheading Jesus.
Colonel Sanders
Veteran Member
The following are general definitions from an American Jurisprudence piece. I just did a quick copy and paste job with it for the board's consumption. Note that "injury as a result thereof" is one of the key elements in a couple of the definitions. I suspect that's where Hillary's escaping indictment on this one. I don't know that, but that seems most likely. Remember, if all the elements are not there, then it is not X crime. And that matters. Or to put it the way they tell you in law school, it's like a chocolate chip cookie, if it has everything except chocolate chips, it isn't a chocolate chip cookie. This could also go to 5th and 14th Amendment protections but it's not really necessary since the case has likely ended here.
I'll also add that terms like "ordinary care" and "lack of diligence" and similar terms all open up cans of worms for the prosecution. Finally, there can't be any on-point case history/precedent for this. If anything, the case history likely shows they'd fail miserably if they tried the case. The FBI did not fail to speak with a platoon of lawyers about this before deciding to not recommend charges. Enough smart people told them they had nothing and that's the reason for the recommendation.
V. Degrees of Negligence; Willful and Wanton Acts
A. In General
2. Definitions
b. Gross Negligence
(1) In General
Topic Summary Correlation Table References
§ 227. Generally
Observation:
In gross negligence, the element of culpability which characterizes all negligence is magnified to a high degree as compared with that present in ordinary negligence.1
West's Key Number Digest
West's Key Number Digest, Negligence Key Number Symbol273
Forms
Complaint, petition, or declaration—Allegation—Gross negligence. Am. Jur. Pleading and Practice Forms, Negligence § 130
Motion to dismiss—Provision—Failure to show gross negligence as against one of several defendants. Am. Jur. Pleading and Practice Forms, Negligence § 132
"Gross negligence" is a nebulous term2 that is defined in a multitude of ways, depending on the legal context and the jurisdiction.3
"Gross negligence" is commonly defined as very great4 or excessive5 negligence, or as the want of, or failure to exercise, even slight6 or scant7 care or "slight diligence."8
"Gross negligence" means more than momentary thoughtlessness, inadvertence or error of judgment;9 hence, it requires proof of something more than the lack of ordinary care.10 It implies an extreme departure from the ordinary standard of care,11 aggravated disregard for the rights and safety of others,12 or negligence substantially and appreciably greater than ordinary negligence.13 In some jurisdictions, the term "gross negligence" also encompasses conduct that "smacks of intentional wrongdoing."14
Caution:
Although gross negligence does refer to a different character of conduct than ordinary negligence, one's conduct cannot be grossly negligent without being negligent.15 Accordingly, there is no issue of gross negligence without substantial evidence of serious negligence,16 and if there is insufficient evidence to support a negligence claim, then a claim based on gross negligence must also fail.17 However, evidence of simple negligence alone is not sufficient to establish gross negligence,18 and conversely, some evidence of care does not defeat a gross-negligence finding.19
CUMULATIVE SUPPLEMENT
Cases:
In order to succeed on a claim under Hawai'i law for gross negligence, a party must show that there has been an entire want of care which raises a presumption of conscious indifference to consequences. Smallwood v. NCsoft Corp., 730 F. Supp. 2d 1213 (D. Haw. 2010).
To state a claim for gross negligence under New York law, a plaintiff must establish four elements: (1) the existence of a duty; (2) a breach of that duty; (3) injury as a result thereof; and (4) conduct that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing. Schwartzco Enterprises LLC v. TMH Management, LLC, 60 F. Supp. 3d 331 (E.D. N.Y. 2014).
To state a claim for gross negligence under New York law, plaintiff must allege four elements: (1) the existence of a duty; (2) a breach of that duty; (3) injury as a result thereof; and (4) conduct that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing. Alley Sports Bar, LLC v. SimplexGrinnell, LP, 58 F. Supp. 3d 280 (W.D. N.Y. 2014).
"Gross negligence" is defined as the failure to exercise slight care. Doe v. Greenville County School Dist., 375 S.C. 63, 651 S.E.2d 305, 224 Ed. Law Rep. 975 (2007).
"Gross negligence" is a relative term, and means the absence of care that is necessary under the circumstances. Doe v. Greenville County School Dist., 375 S.C. 63, 651 S.E.2d 305, 224 Ed. Law Rep. 975 (2007).
I'll also add that terms like "ordinary care" and "lack of diligence" and similar terms all open up cans of worms for the prosecution. Finally, there can't be any on-point case history/precedent for this. If anything, the case history likely shows they'd fail miserably if they tried the case. The FBI did not fail to speak with a platoon of lawyers about this before deciding to not recommend charges. Enough smart people told them they had nothing and that's the reason for the recommendation.
V. Degrees of Negligence; Willful and Wanton Acts
A. In General
2. Definitions
b. Gross Negligence
(1) In General
Topic Summary Correlation Table References
§ 227. Generally
Observation:
In gross negligence, the element of culpability which characterizes all negligence is magnified to a high degree as compared with that present in ordinary negligence.1
West's Key Number Digest
West's Key Number Digest, Negligence Key Number Symbol273
Forms
Complaint, petition, or declaration—Allegation—Gross negligence. Am. Jur. Pleading and Practice Forms, Negligence § 130
Motion to dismiss—Provision—Failure to show gross negligence as against one of several defendants. Am. Jur. Pleading and Practice Forms, Negligence § 132
"Gross negligence" is a nebulous term2 that is defined in a multitude of ways, depending on the legal context and the jurisdiction.3
"Gross negligence" is commonly defined as very great4 or excessive5 negligence, or as the want of, or failure to exercise, even slight6 or scant7 care or "slight diligence."8
"Gross negligence" means more than momentary thoughtlessness, inadvertence or error of judgment;9 hence, it requires proof of something more than the lack of ordinary care.10 It implies an extreme departure from the ordinary standard of care,11 aggravated disregard for the rights and safety of others,12 or negligence substantially and appreciably greater than ordinary negligence.13 In some jurisdictions, the term "gross negligence" also encompasses conduct that "smacks of intentional wrongdoing."14
Caution:
Although gross negligence does refer to a different character of conduct than ordinary negligence, one's conduct cannot be grossly negligent without being negligent.15 Accordingly, there is no issue of gross negligence without substantial evidence of serious negligence,16 and if there is insufficient evidence to support a negligence claim, then a claim based on gross negligence must also fail.17 However, evidence of simple negligence alone is not sufficient to establish gross negligence,18 and conversely, some evidence of care does not defeat a gross-negligence finding.19
CUMULATIVE SUPPLEMENT
Cases:
In order to succeed on a claim under Hawai'i law for gross negligence, a party must show that there has been an entire want of care which raises a presumption of conscious indifference to consequences. Smallwood v. NCsoft Corp., 730 F. Supp. 2d 1213 (D. Haw. 2010).
To state a claim for gross negligence under New York law, a plaintiff must establish four elements: (1) the existence of a duty; (2) a breach of that duty; (3) injury as a result thereof; and (4) conduct that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing. Schwartzco Enterprises LLC v. TMH Management, LLC, 60 F. Supp. 3d 331 (E.D. N.Y. 2014).
To state a claim for gross negligence under New York law, plaintiff must allege four elements: (1) the existence of a duty; (2) a breach of that duty; (3) injury as a result thereof; and (4) conduct that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing. Alley Sports Bar, LLC v. SimplexGrinnell, LP, 58 F. Supp. 3d 280 (W.D. N.Y. 2014).
"Gross negligence" is defined as the failure to exercise slight care. Doe v. Greenville County School Dist., 375 S.C. 63, 651 S.E.2d 305, 224 Ed. Law Rep. 975 (2007).
"Gross negligence" is a relative term, and means the absence of care that is necessary under the circumstances. Doe v. Greenville County School Dist., 375 S.C. 63, 651 S.E.2d 305, 224 Ed. Law Rep. 975 (2007).
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Achwienichtig
Member
Who went overboard trying to make a big deal out of it? Comey?
Not at all. Comey provided facts and figures, and those facts and figures directly contradicted Clinton's talking points. That's not making a big deal out of it. That's setting the record straight. So what if it works against Hillary?
Furthermore, Comey did not indicate any inability to prove wrongdoing. Nor did he indicate whether the letter of the law was broken or not. What he did say was that the Justice Department has no history of prosecuting similar cases. Now, on this point, I think Comey is correct. You have a bunch of people, for instance, trying to equate Hillary with Snowden or Manning in an attempt to show how the establishment is above the law. But Snowden and Manning are really on completely different levels, and Comey is right to say Hillary's actions are not even remotely similar.
RavenSky
The Doctor's Wife
So everyone is upset that she will be not as bad as Nixon, Reagan, or Bush II; but worse than Obama and maybe her husband. Maybe on par with Bush 1?
Don2 (Don1 Revised)
Contributor
I think the emails involved Clinton aides? So, someone might get in trouble, but not her...kinda like Whitewater?
Zzzzzzzz ...
Say what you will about Trump, but at least his controversies are interesting and somewhat related to his ability to do the job of President.
Say what you will about Trump, but at least his controversies are interesting and somewhat related to his ability to do the job of President.
Jason Harvestdancer
Contributor
Secret information on an unsecured server? Absolutely nothing to do with the job of president there.
So a CGI board member asking the SecState's aids to connect a wealthy donor with a US ambassador is a non-issue? Seems like they were selling access to me.
Jimmy Higgins
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Like I said, Clinton will scrape from the top to benefit herself. I don't expect her to sell out the country though. I do expect her to understand the concept called diplomacy, unlike her politically witless opponent.
This is the trouble. We have Bernie Sanders, a guy who was what America actually wants in charge, but when it comes to the voting booths, people get stupid. So we are treated to Clinton v Trump instead.
There's always going to be another election - so we may as well give Clinton preemptive mandate to do anything in her first term. Indeed, in 2024 the Republican candidate will likely be distasteful so then too literally anything is acceptable.
At what point will it be possible to actually talk about this stuff without the canned reply of 'Trump is worse'?
On November 9th. Bill Maher said it best that whatever pet issue you have and however important it is to you, that importance is a distant second to making sure that Donald Trump never gets into the Oval Office. If you want a President Clinton kept in line, have a Democratic House and Senate keep her in line.