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During the presidential campaign, Rudy Giuliani argued (correctly) that Hillary Clinton could be charged with a federal felony for mishandling classified information through her sloppy email practices as secretary of state even if she did not intend to break the law. But there is also a strong case to be made that the former New York City mayor, who reportedly is in the running for attorney general or secretary of state in the Trump administration, committed multiple federal felonies by assisting Mujahedeen-e-Khalq (MEK), an Iranian opposition group that the State Department listed as a terrorist organization until September 2012.
"My ties to them are very open," Giuliani, a former U.S. attorney, recently told The New York Times. "We worked very hard to get them delisted." But under the broad understanding of the federal ban on "material assistance" to terrorist groups that the Supreme Court upheld in 2010, that work was pretty clearly a crime punishable by up to 15 years in prison.
The "material support" statute, 18 USC 2339B, prohibits the provision of "training," defined as "instruction or teaching designed to impart a specific skill"; "expert advice or assistance," defined as "advice or assistance derived from scientific, technical or other specialized knowledge"; "personnel," which means any person, including oneself, who works under the organization's "direction or control"; or any other "service," which is not defined at all. In Holder v. Humanitarian Law Project, the Supreme Court said the law covers volunteer work aimed at helping listed organizations resolve their grievances through nonviolent means. While such advice and advocacy would ordinarily be protected by the First Amendment, the Court said, "the government's interest in combating terrorism" justifies the speech restrictions imposed by the ban on material support.
Notably, the Supreme Court refused to read the law as requiring an intent to further a terrorist organization's illegal activities. As long as someone knows he is assisting a "foreign terrorist organization" (FTO), it is no defense to say he only meant to promote its lawful activities. Giuliani, who "worked very hard to get [the MEK] delisted," obviously knew the group was considered an FTO.
Nor is it necessary that someone providing material support to an FTO receive compensation in return, although Giuliani apparently was paid handsomely for his speeches on behalf of the MEK. According to the Court, the difference between protected and prohibited advocacy is not whether money changes hands; it's whether the advocacy is "performed in coordination with, or at the direction of, a foreign terrorist organization." By announcing that "my ties to [the MEK] are very open," then, Giuliani is effectively confessing to a crime.
I am not saying Giuliani should go to prison for his efforts to rehabilitate the MEK. The State Department's list is arbitrary and shaped by political considerations, the MEK had a strong argument that it should no longer be considered an FTO, and in any case peaceful advocacy of lawful activities should never be treated as a crime. Knowingly providing material assistance to an FTO (which Giuliani did) is not necessarily the same as knowingly providing material assistance to terrorism. For the sake of fairness and freedom of speech, the law's mens rea requirement should be stronger.
The same goes for 18 USC 793, which Clinton arguably broke by allowing classified information to be removed "from its proper place of custody" through "gross negligence," a felony punishable by up to 10 years in prison. A conviction under that law should require more than negligence, because it should not be possible to accidentally commit a crime. That is the main reason Comey gave for declining to recommend charges against Clinton: Although the law does not require criminal intent, justice does.
But Giuliani was not willing to cut Clinton any such slack. As far as he was concerned, she violated the letter of the law, so she should have been prosecuted. It did not matter whether she realized she was breaking the law. By that same reasoning, Giuliani should be prosecuted for providing material support to a foreign terrorist organization. It does that matter that he did not view the MEK as a terrorist group; it's enough that the State Department did. Nor does it matter that he did not intend to promote terrorism, since the law does not include any such mens rea requirement. If Hillary Clinton belongs in prison, so does Rudy Giuliani.
Jacob Sullum is a senior editor at Reason magazine and a nationally syndicated columnist.
#1: Gatlin To: Deckard (#0)
BULLSHIT!
Gatlin posted on 2016-11-17 05:31:11 Reply Private Reply
#2: Deckard To: Gatlin, hondo68 (#1)
Criminal conduct is A-OK when "our guy" does it - so sayeth Gatlin.
Deckard posted on 2016-11-17 07:21:30 Reply Private Reply
#3: Gatlin To: Deckard (#2)
Gatlin posted on 2016-11-17 08:43:34 Reply Private Reply
#4: Vicomte13 To: Deckard (#0)
Vicomte13 posted on 2016-11-17 08:53:43 Reply Private Reply
#5: nolu chan To: Deckard (#0)
It's panic time in Clintonville.
http://www.freep.com/story/news/politics/2016/11/16/jesse-jackson-obama-pardon-hillary-clinton/93979554/
Now, if she could only get a presidential pardon for the Clinton Foundation, the Clinton Global Initiative, CHAI, and other Clinton "charities."
nolu chan posted on 2016-11-17 10:06:39 Reply Private Reply
#6: misterwhite To: Deckard (#0)
Oh? So if a person dies because of a negligent discharge of a firearm, that just too bad? Or if a child dies in a hot car because of a negligent parent, that's understandable? Or if someone dies because a negligent driver was on their phone, that's just the way it is?
Sorry. People are prosecuted every day for negligence. Not Hillary, of course. Just the little people.
misterwhite posted on 2016-11-17 10:51:37 Reply Private Reply
#7: nolu chan To: misterwhite, Deckard (#6)
nolu chan posted on 2016-11-17 11:06:35 Reply Private Reply
#8: misterwhite To: nolu chan (#7)
Since stupidity is not a crime, that was all they had.
But it's all moot. The law says nothing about excusing negligent acts. She's guilty.
misterwhite posted on 2016-11-17 11:19:52 Reply Private Reply
#9: Hondo68 To: Deckard, Americas Mullah, *Arab Spring Jihad* (#2)
At Trump Towers, applying for Czar of False Flag Terrorism/Global Tyranny
Hondo68 posted on 2016-11-17 11:43:43 Reply Private Reply
#10: sneakypete To: nolu chan (#7)
That is nothing more than saying "I know this is illegal and a breach of national security,but make sure I can't be identified as the sender and send it anyhow because what I want and covering for ME is more important than the security of the United States of America."
Standing alone,THAT one email from her qualifies her for a 10 plus year sentence to Club Fed. He willfully and knowingly allowed classified information vital to the survival of the US to be available to the public.
At that point, negligence left the room. Also, when she had her maid perform duties in her SCF.
No kidding. I can guarantee you that if anyone in uniform ever did that,even a General Officer,that they would be looking at a loss of career as well as retirement benefits,and a long sentence in a military prison.
sneakypete posted on 2016-11-17 12:31:12 Reply Private Reply
#11: TrappedInMd To: nolu chan (#5)
That would be hilarious.
If she accepts it that will be an admittance of guilt.
Trump already says he is not going after her.
TrappedInMd posted on 2016-11-17 13:36:14 Reply Private Reply
#12: nolu chan To: TrappedInMd (#11)
What would be hilarious is if Obama granted her a Ford-Nixon type pardon for any crimes she may have committed, and then the Trump administration went after the Foundations and took away all the Clinton money. The foundations would not be immune and the Clintons would not be immune from tax liability. The pardon would bar criminal prosecution of Hillary. It would also remove any invocation of a 5th Amendment plea as there would be no threat of criminal prosecution.
nolu chan posted on 2016-11-17 13:52:50 Reply Private Reply
#13: nolu chan To: Deckard (#0)
It appears that former New York City Mayor Rudy Giuliani, Former Pennsyllvania governor Ed Rendell, Rep. John Lewis (D-Ga.), former FBI director Louis Freeh, former senator Robert Torricelli, former representative Patrick Kennedy, former national security adviser Gen. James Jones, former Joint Chiefs chairman Gen. Richard Myers, former White House chief of staff Andy Card, retired Gen. Wesley Clark, former representative Lee Hamilton, former CIA director Porter Goss and former senator Evan Bayh were just lucky that Secretary of State Hillary Rodham Clinton removed the MEK from the list of state sponsors of terror.
nolu chan posted on 2016-11-18 02:02:56 Reply Private Reply
#14: misterwhite To: TrappedInMd (#11)
No he didn't.
misterwhite posted on 2016-11-18 11:34:13 Reply Private Reply
#15: Roscoe To: misterwhite (#14)
I suspect Trump's choice of Sessions just raised the panic level for Bill and Hill.
Roscoe posted on 2016-11-18 11:37:59 Reply Private Reply
#16: misterwhite To: Roscoe (#15)
Shhh! We want to keep everyone thinking that Trump really likes the Clintons ... until it's too late for Obama to pardon them.
misterwhite posted on 2016-11-18 11:49:16 Reply Private Reply
#17: Roscoe To: misterwhite (#16)
If Obama pardons them, Trump should simply revoke the pardons. After Obergefell v. Hodges and King v. Burwell, it's not like the Constitution means anything anymore anyway.
Roscoe posted on 2016-11-18 12:00:48 Reply Private Reply
#18: misterwhite To: Roscoe (#17)
And if Americans nod their collective heads in agreement, then the Trump kids need to interpret that as a green light to use their dad as a means to expand their business worldwide in a massive pay-for-play scheme.
That's illegal? Drag it out for four years then issue pardons after raking in billions.
Will the same Americans again nod their collective heads in agreement?
misterwhite posted on 2016-11-18 12:30:55 Reply Private Reply
#19: Roscoe To: misterwhite (#18)
Lots of possibilities...
Roscoe posted on 2016-11-18 12:45:54 Reply Private Reply
#20: TrappedInMd To: misterwhite (#14)
Looking around with google I think you are right.
TrappedInMd posted on 2016-11-21 14:01:45 Reply Private Reply