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- bbauska
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05 Feb 2023, 3:03 pm
What is the case in question, Freeman? I would love to look up that case. It seems that is what the Left's public opinion is based upon.
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- freeman3
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05 Feb 2023, 8:05 pm
Gorin v United States. Looking at the case again the Court rejected the argument thst the statute was vague because there was intent required under the statute
"In each of these sections, the document or other thing protected is required also to be "connected with" or "relating to" the national defense. The sections are not simple prohibitions against obtaining or delivering to foreign powers information which a jury may consider 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 [Footnote 7] or forced anyone, at his peril, to speculate as to whether certain actions violated the statute. [Footnote 8] This Court has frequently held criminal laws deemed to violate these tests invalid. United States v. Cohen Grocery Company, [Footnote 9] urged as a precedent by petitioners, points out that the statute there under consideration forbade no specific act, [Footnote 10] that it really punished acts "detrimental to the public interest when unjust and unreasonable" in a jury's view. In Lanzetta v. New Jersey, [Footnote 11] the statute was equally vague.
"Any person not engaged in any lawful occupation, known to be a member of any gang . . . , who has been convicted at least three times of being a disorderly person or who has been convicted
Page 312 U. S. 27
of any crime in this or in any other State, is declared to be a gangster. . . ."
We there said that the statute "condemns no act or omission;" that the vagueness is such as to violate due process. [Footnote 12]
But we find no uncertainty in this statute which deprives a person of the ability to predetermine whether a contemplated action is criminal under the provisions of this law. [Footnote 13] The obvious delimiting words in the statute are those requiring "intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign
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nation." This requires those prosecuted to have acted in bad faith. The sanctions apply only when scienter is established. [Footnote 14] Where there is no occasion for secrecy, as with reports relating to national defense, published by authority of Congress or the military departments, there can, of course, in all likelihood, be no reasonable intent to give an advantage to a foreign government."
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freeman3 on 05 Feb 2023, 8:08 pm, edited 1 time in total.
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- freeman3
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05 Feb 2023, 8:06 pm
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- bbauska
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06 Feb 2023, 3:43 pm
https://en.wikipedia.org/wiki/Gorin_v._United_StatesAm I reading this correctly?
The Wiki article shows that the defense used the vagueness and intent aspects of the case. However, the Supreme Court found the two main defendants guilty regardless of the arguments focus on intent and vagueness.
https://en.wikipedia.org/wiki/Stephen_Jin-Woo_KimThis is the intent case.
Kim was defended by prominent attorneys Abbe Lowell of Chadbourne & Parke and Paul M. Thompson and James M. Commons of McDermott Will & Emery.[10] One of Lowell's arguments was that Bob Woodward's book Obama's Wars contains far more sensitive information than the information Kim is accused of leaking, which created a double standard in leak prosecution.[9] Lowell also said that the DOJ is "stretch[ing] the espionage laws" and having a chilling effect on government officials communicating with the press. He also said that Kim would never do anything "for which he had any reason to believe would harm [US interests]."Read that last sentence... Kim would never do anything "for which he had any reason to believe would harm [US interests]. Kim did NOT have the intent to harm the US.
He was convicted regardless of intent. Just like Mihail Gorin and Hafis Salich.
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- freeman3
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06 Feb 2023, 5:17 pm
Nope. Youvare not reading it correctly. Defendant argued how they could know what act would violate national security, that's too vague a concept. The court essentially responded that the requirement of the statute that a defendant have "intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation" cures any vagueness problem. Because it requires a defendant to have a bad faith intent to violate national security. But an espionage statute that doesn't have a mental intent component--gross negligence--presumably still has a vagueness problem. That's the argument.
As for Kim he intentionally transmitted information deemed to violate national security. The statute--similar to Gorin--required that he had "reason to believe" that it could harm the US or benefit a foreign country
"Whoever, lawfully having possession of, access to, control over, or being entrusted with 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 willfully communicates, delivers, transmits advantage of any foreign nation..."
So there is a mental bad faith component that he had reason to believe that the info could harm the US and he has to willfully transmit it. He could have argued that he had no reason to believe it would harm the US but he plead guilty. Someone who acts with gross negligence in allowing secured information to get out is not acting with the intent required in the Kim case. He had to intentionally transmit it whereas under the gross negligence case there is no mental intent to cause the info to get out at all
.And the vagueness problem creeps back in...
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- bbauska
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08 Feb 2024, 3:59 pm
https://www.nbcnews.com/politics/joe-biden/special-counsel-says-evidence-biden-willfully-retained-disclosed-class-rcna96666Does this seem the same as President Trump's case to you, Freeman?
I would be concerned about this statement:
“We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory,” it said. “Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him — by then a former president well into his eighties — of a serious felony that requires a mental state of willfulness.”He is not guilty because of poor memory. Scary...
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- freeman3
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09 Feb 2024, 10:19 am
Not to quibble, but Trump is not president...and hopefully won't be again
And there many differences in the two cases having to do with intent: Trump intentionally took documents and did not cooperate in returning them and showed that he did not want to return them, number and importance of the documents was much larger, he tried to obstruct their return and he kept them all where he lived; Biden did cooperate and it was simply an error, not an intentional attempt to keep documents and while some were found at his residence others were kept at the Penn Biden Center (whereas Trump has hundreds of classified docs in one location)
As long as Biden is able to sit down and do long interviews with journalists, I'm not worried about his competency...
https://m.youtube.com/watch?v=NfU931HBW ... p=2AF2kAIB
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freeman3 on 10 Feb 2024, 6:47 am, edited 1 time in total.
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09 Feb 2024, 10:36 am
Some requisite cheap shots (similar to Comey with regard to Hillary) by the special counsel, a conservative Republican, former US attorney appointed by Trump--Garland bending over backwards to ensure the special counsel would not show any favoritism towards Biden by appointing a conservative Republican-- but at least we can be very confident there is no case there.
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09 Feb 2024, 11:10 am
By the way, those comments by Hur were inappropriate...
https://www.huffpost.com/entry/andrew-w ... .%E2%80%9DGarland has been the gift that keeps on giving to Repubs/Trump...delaying investigating Trump for a year. Now appointing a special counsel making gratuitous political attacks on Biden. And Garland shouldn't have released the report with those inapppropriste comments in them!
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- bbauska
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02 May 2024, 8:32 am
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04 May 2024, 11:39 am
https://justthenews.com/politics-policy/all-things-trump/trump-whodunnit-prosecutors-admit-key-evidence-document-case-hasFreeman, you are an attorney. I have a question, is this a problem? The right leaning blogs say so, and Special Prosecutor Jack Smith says there was wrong-doing.
Side note: What is your perspective on the case Alvin Bragg brought? Is it going well? CNN says no, but I have not had much faith in CNN since Ted Turner married Jane Fonda.
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04 May 2024, 4:31 pm
It seems minor to me that some of the documents location in the boxes now doesn't match the scans that were made of the documents. I am not sure what the argument would be. Yeah, a defendant is going to point to any discrepancy but if all the docs are still there not sure what the argument would be. I guess I would have to look at what the Trump team is arguing to know for sure.
As for the Bragg case this case would have been a slam dunk violation of federal campaign law. But the DOJ closed the case while Trump was president and Garland refused to reopen it and it appears that this was a stretch for NY to file it as a violation of state law.
Since this is the only case that the US Supreme Court is not seemingly likely to intentionally delay for partisan reasons until after the election with its forthcoming Trump immunity decision
(instead of taking the immunity case immediately in December they had it to go to the Court of Appeals first which was unnecessary because they were going to have to ultimately decide it anyway), this is important. They will probably come up with decision specifying in general what types of presidential acts are (and are not) immunized and then remand back to the trial court to initially decide whether which acts the prosecutor in each case alleges are criminal are immunized. So that will likely take us past the election...
(the NY state case is not affected by the immunity decision because it concerns alleged criminal acts before he was president; the Georgia case and Jan. 6th cases are affected because they concern acts taken while he was president, the documents case is not as clear because most if not all of the criminal conduct in the documents case was post-presidency-I'm actually not as certain that case would be delayed if the Supreme Court remands the immunity decision.)
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- bbauska
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05 May 2024, 4:32 am
Thank you Freeman.
The reason I asked about the boxes is because chain of custody was a big thing regarding evidence when I was involved in a drug bust with the Coast Guard. It must be different for this case.
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- freeman3
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05 May 2024, 10:52 pm
Sarcasm noted. Sure you need to show a chain of custody to show the evidence was taken from Trump's possession and into FBI's custody, so that we know that a top secret document that was taken from Trump is same one in a box. But is it significant that said document that appears to be exactly the same that was signed off by an FBI agent and was scanned is not in the precise location in a box? You tell me. Is there a concern that this is not the same document? Trump's defense counsel can look at it and verify that it is the same document. We'll see if they can make a convincing argument that documents not in the precise order in a box is a significant attack on the chain of custody such that the document is not reliable.
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- bbauska
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06 May 2024, 5:22 am
So the documents can be in any order? That doesn't matter? I was under the impression that they were to be in a certain order. Why did Smith say that it was inadvertent the order is different, instead of saying it does not matter?
Please let me know what the requirement is and if that has been violated.