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  • "Professor" Holder's Criminal Law Lesson

    When Rep. James Sensenbrenner (R-WI) asked Attorney General Eric Holder to explain the letters concerning Fast and Furious that were withdrawn by DOJ because they were “inaccurate,” as well other misstatements by Holder’s Justice Department in the investigation of the gun-walking disaster, Holder was quick to his own defense, arguing that no one lied.

    “Tell me what’s the difference between lying and misleading Congress, in this context?” Sensenbrenner asked.

    “Well, if you want to have this legal conversation, it all has to do with your state of mind and whether or not you had the requisite intent to come up with something that can be considered perjury or a lie,” Holder said.

    In other words, the Attorney General is saying that for an actor to be guilty of a crime, he must have the state of mind (mens rea) to commit a crime.  That common sense, and common law principle, was the gold standard—-until recently.

    Legally, Holder appears to be correct under the definition of perjury in Title 18, which requires that an individual “willfully subscribes as true any material matter which he does not believe to be true.”

    Meanwhile, there are scores, if not hundreds, of laws that require far less criminal intent and could result in hard time in federal prison. Just ask John J. Cassese, who, after settling a civil complaint brought by the SEC on insider trading charges, found himself the target of a criminal prosecution.  He had already paid $321,387.84 for a deal in which he profited $150,000.  Cassese bought stock on what he thought to be permissible information, but the facts were against him.  For a civil complaint, there was no intent requirement, so Cassese quickly settled.

    But criminal prosecutors in the Southern District of New York, with the Enron collapse happening in the background, pursued Cassese nonetheless.  After two trials, one resulting in a conviction, a federal judge overturned the verdict, explaining to prosecutors the concept of criminal intent and why Cassese could not be convicted without it.

    Like the judge, Holder jumps at the chance to explain the virtues of what every first year law student knows: that criminal law in America is based on a long tradition that a crime is not committed merely because of a bad act, but because an individual had the requisite intent to commit the crime.  But Holder and his Justice Department often fail to apply this same principle in enforcing the law, and instead allow overcriminalization to run rampant.

    If Congress pursued Holder in the same way that Holder’s DOJ handles prosecutions for the CEOs of drug companies under the Food, Drug, and Cosmetic Act, they he would have much to fear.  As the Wall Street Journal reported, the “responsible corporate officer doctrine” has found new life in Holder’s DOJ.  Executives of pharmaceutical companies have been found personally criminally liable because of the actions of their company and its employees even where there is no evidence that the executives even had knowledge that a crime was committed  .  The Supreme Court has upheld these convictions on the premise that drug companies, as well as food and other health companies, have a higher risk of causing death and injury if they engage in wrongdoing.

    In the case of the DOJ and the Bureau of Alcohol, Tobacco, Firearms and Explosives, we already know that Fast and Furious has caused the death of Border Patrol agent Brian Terry, and guns from the operation continue to show up at crime scenes.  In such a clearly dangerous practice, would Holder not want his DOJ attorneys to criminally pursue the CEO?

    In addition to arguing about state of mind, Holder also argued that his people had taken reasonable steps to assure that the information was correct.  He stated that “[t]he information that was provided in that February 4th letter was gleaned by the people who drafted the letter after they interacted with people who they thought were in the best position to have the information.”

    Gibson Guitar has echoed Holder’s argument in explaining how the company relied on Indian officials who informed Gibson that the wood the company was exporting was perfectly legal under Indian law.  As Holder would say it, Gibson “interacted with people who they thought were in the best position to have the information.”  Yet now, Holder’s DOJ prosecutors are considering criminal charges after seizing $2 million worth of materials from the guitar manufacturer, claiming Gibson illegally took wood in violation of the Lacey Act.  Rather than mercilessly pursue Gibson, Holder might want to ask his attorneys to listen to his own words and consider the fact that the company does not appear to have had the intent to violate the law and clearly had no knowledge that it was violating the law.

    Setting aside whether one believes Holder’s defense or not to the Fast & Furious debacle, it is worth repeating that Congress routinely crafts new federal laws with criminal penalties, without inserting a mens rea requirement.  Members should recall the importance of including proper intent requirements in every new criminal law that is written (as if we don’t already have enough at over 4,500 and counting).  The Without Intent report published by The Heritage Foundation and the NACDL revealed that such is not the case.

    Class was in session on Thursday on Capitol Hill, but time will only tell if Congress and the DOJ will learn from Professor Holder’s last lesson of the semester.

    Posted in Featured [slideshow_deploy]

    13 Responses to "Professor" Holder's Criminal Law Lesson

    1. LibertyAtStake says:

      Sounds like "Professor" Holder is preparing to throw an underling under the bus using "the liar lied to me [us] and I [we] were just the messengers" defense. Clever devil. Now he can move on to fixing the 2012 election.

      d(^_^)b http://libertyatstake.blogspot.com/
      “Because the Only Good Progressive is a Failed Progressive”

    2. Stirling says:

      Holder is a "progressive", which charateristically are known for having to change the truth to fit the agenda at the time for political reasons.. This is why he and the others in this administration sound so similar when they try to explain their actions, which seem to change daily like the wind. Being caught in a lie is all part of this "Squishy" (no backbone) answers. The problem ultimately is that the facts expose their lies in the end.

    3. West Texan says:

      Should society let incarcerated sociopathic murderers go free on grounds of "mens rea"? Is there any hope for justice?

    4. Bobbie says:

      one thing perfectly clear to those tasteless Americans leading the country, they're experts at rhetoric.
      mr. holder: "nobody lied!" nobody lied!" "it all has to do with your state of mind and whether or not you had the requisite intent to come up with something that can be considered perjury or a lie”

      … If Mr. Holder and the like are unwilling to communicate and perform in a professional manner where truth doesn't need to be guessed or interrogated to a point of "definite uncertainty," there's no reason for their high paid positions. wasting time playing word games while people with guns are ready to kill wherever they are…

      don't let Holder and his "people" get away with their childish excuses on "how to be understood." America doesn't need high maintenance people serving Americans and at the people's cost of the conduct of this administration being extreme and unfavorable to truth and untruthful to the people they've been elected to serve putting us in harms way while they hold themselves unaccountable through their college educational skills of communicable rhetoric. It's become a disease most democrats, their constituents and government employees word in conversation…

      responsibility and accountability grows self esteem. many on holder democrat side have been doing without it far too long! give em' a BOOST!!!!

    5. malcolmkyle says:

      Are you an international criminal? And are you wondering if it's wise to maintain your affiliation to any one of the estimated sixteen currently-active Mexican Drug Cartels? Maybe you should consider the following information very carefully:

      As a gesture of good will vis-a-vis cross-border relations, key members of the American Federal Government have recently pledged a solemn oath, declaring their commitment to encouraging people like yourself to increase performance and productivity. In particular, the United States Department of Justice will guarantee that you achieve a respectable level of technology in both military grade weapons and equipment while actively facilitating the laundering of that swirling cascade of cash that a business like yours invariably and continually generates.

      Still not convinced that during prohibition the phenomenal benefits of remaining an international drug criminal far outweigh the remotely possible, negative consequences? Here's another recent DOJ announcement, and this time written personally by their principal corporate attorney whose main priority at the moment is to avoid being tried for treason, gun-running, racketeering and murder:

      "For nearly three years, I have been privileged to work closely with many of the most ruthless organizations to the south of our border. I am extremely proud of our record of abuse, fraud, waste, misconduct, and treason and I pledge a continuation of all such policies that will further weaken our national security and compromise all honest efforts of law enforcement."
      - Attorney General Holder.

      Some people, it appears, have absolutely no problem being simultaneously absurd, and very, very evil.

      Must we wait for a complete economic collapse to regain our unalienable­ rights?
      Maybe it's high time we all stood up and told our government that we're pooped at being beaten and jailed in order that unconscionable Transnational Corporations, and their Media Enablers, can continue to abuse, addict and poison us for obscene profits?

      "I'm not upset that you lied to me, I'm upset that from now on I can't believe you."
      - Friedrich Nietzsche

    6. Leon Lundquist says:

      We are a nation without Swift Justice. Holder is the Progressive poster boy proving the opposite of Justice, as sure as the fox put in charge of the hen house. Criminal Intent is gushing from his every pore, didn't you see him Refraining Prosecution, False Prosecuting Arizona, Lying to Congress? Progressives have got away with so many crimes over the last hundred years, they have zero respect for the Law of the Land. Gangsters! The item left out in many reports is the number of Mexican deaths that have resulted from Fast and Furious! The run time of F&F exactly corresponds with mass casualties in Mexico. Holder was put into Office to fail in the People's Interest, and succeed in the Domestic Enemy's Interest. They found out that Gun Shops were not shipping guns over the border, so they created this fiasco to prove to History they were. Ten years from now nobody will remember that U.S. guns were never the problem. Democrats needed gun traffic to suppress our Second Amendment.

      • Charles Webb says:

        Holder when asked, by Congress, "Is fast and furious just a scheme to do away with the 2nd Amendment? He said that " the very idea was ludicrous." If we are not careful another Obama term could easily do away with the 2nd Amendment. I don't want to get started on the fading 1st Amendment.

    7. malcolmkyle says:

      "For nearly three years, I have been privileged to work closely with many of the most ruthless organizations to the south of our border. I am extremely proud of our record of abuse, fraud, waste, misconduct, and treason and I pledge a continuation of all such policies that will further weaken our national security and compromise all honest efforts of law enforcement."
      - Attorney General Holder.

      • Bobbie says:

        I'm sorry for the thumbs down, malcolmkyle! I was quick to fail to see the name of the one who spoke it…
        pretty sad that people taking money from us our using it to work against us in such a clear and hostile manner!

    8. Mike, Wichita Falls says:

      Would such an response by an Attorney General Ashcroft or Gonzalez been acceptable to any oversight committee? How much time does DOJ need to submit accurate documents to this oversight committee regarding Fast & Furious? Regarding all future requests, what is stopping them from waiting until the 11th hour to submit documents and later retracting them because they were factually but unintentionally inaccurate? Saddam Hussein waited until the last minute to submit WMD documentation to the UN simply to buy time.

      Why should any food or drug company or its CEO be liable for any death or injury once the FDA has approved their product for market?

    9. Lloyd Scallan says:

      You're missing the point. Holder is acting on instructions from Obama. The entire F&F operation was designed and approved by Obama, and his minions, after Hillary signed a U.N. Small Arms Tready. They had to protect their statements that U.S. guns are the major crime problem in Mexico. But when documents were discovered in the Mexican government that the majorty of guns were coming up through South America, the Obama administration had to hide those facts to continue their desire to destroy our second amendment rights.

    10. Mike, Orlando says:

      Holder's response is as old as the hills. To paraphrase…"A lie is only a lie, when the lier is caught in the lie. Otherwise, it's just a mistake" Get it! As a private citizen called before a Congressional committee, try submitting inaccurate or false information and see where you end up. Holder is actually worse than the criminals he and his corrupt DOJ are attempting to prosecute, At least they rob you face to face, and their intentions are known to all. Holder and his boss should be faire, tried, and jailed at Club FED. I'm sure Blago would enjoy the company.

    11. AD-RtR/OS! says:

      It's good to know that when the next political assassination occurs, that the killer can claim that he did not have the intent to kill, but was only expressing his disagreement with the policies of his victim, and that the AG will recognize that as a valid point of political disagreement and dismiss whatever homicide charges are pending.
      We are in the very best of hands.

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