The Silver Lining

This article was featured in our weekly newsletter, the Liberator Online. To receive it in your inbox, sign up here. You may have seen a story about one of the presumptive nominees for President and her recent interactions with the FBI. The outcome is one that we can now point to, with regard to intent, when discussing the justice system. Regardless of what happened and happens with this particular case, the FBI and the Department of Justice did not pursue charges due their view that the actions leading to the investigation did not include criminal intent. THAT is our silver lining. Both FBI Director Comey and Attorney General Loretta Lynch pointed to a lack of intent to violate laws governing the handling of classified information. In a common law jurisdictions like the United States, a general test of guilt is one that requires proof of fault, both in thought and action. The former requires mens rea, or “a guilty mind,” while the latter requires actus reus, or “a guilty act.” This principle is stated best by Edward Coke, who is considered to be the greatest jurist of the Elizabethan and Jacobean eras in England who said, “an act does not make a person guilty unless (their) mind is also guilty.” Today, far too many Americans find themselves arrested, in court, or behind bars lacking the “guilty mind,” the intention or knowledge of wrongdoing that constitutes part of a crime, despite having acted in a way deemed unlawful. We also see a vocal group perpetuating a popular notion that once arrested or encounters police, a person is already viewed as guilty, the antithesis of justice. Further, this instance amplifies the difference between the political class and the rest of us. Did we really think that someone who has lived in the White House, served in the US Senate, and been appointed to serve in the Presidential cabinet would encounter justice in a similar manner as would happen if you or I were in the same situation? Putting aside our personal feelings about the person in question, justice cannot be served without observing that some may “get off.” If we use this high-profile investigation to exemplify why many more should not be locked in a cage for an act in which they held no “guilty mind,” we can win many hearts and minds over to a sense of justice. Libertarians hold justice in high regard. It’s the tiered system where some are “more equal than others” that we despise.