Do you see much sizzling media coverage of appeals courts?

Hoping that the MSM finally starts to shed some light on this investigation and trial

Have you any familiarity with jury trials?
Love the image of a judge running wildly, robes aflutter.

This is a bit of a judge run wild.

[a] the process by which the government prosecutors MUST address to prove the two essential components to the substantive count [that of communicating classified DNI],

from

[b] the process by which the government prosecutors MIGHT CHOOSE in trying to prove on the inchoate count [that of conspiracy to communicate classified DNI]?

This opinion says the government cannot seek to prove that a particular piece of information is in fact DNI [the “second prong of the test”] by its “classification” of that information.

In fairness, this opinion goes further, to suggest that classification is irrelevant to whether information is in fact DNI — which may be what gives off the impression of oddness: the possibility that the government might actually seek to prosecute a case of illegally communicating DNI that, for whatever reason, happens to be unclassified. But that’s only a theoretical possibility from an overly narrow reading, not a ‘real’ possibility, because meanwhile the first prong of the test still requires proof that at the very same material time the very same information was not ‘merely’ DNI, but also classified.

Yet, turning back to the conspiracy count, it isn’t actually essential that the government prove that any information the government chooses to show that the defendants in fact communicated was in fact either classified OR DNI, leave aside both.

Instead, ‘all’ that is ESSENTIAL for the government to prove is that a given defendant conspired with another person [presumably one or the other or both of the other defendants; I assume this count is framed in terms of the other two defendants, but even ‘with some other person’ would suffice technically] to communicate classified DNI.

In that context, offering proof that the defendants in fact did communicate classified information [as distinct from classified DNI] would not be, I am prepared to agree, irrelevant to the issue of the INTENT, of whichever of the defendants did the communication [though there’s some judging to be done as to whether the particular instance of communication might be too ‘remote’ from the conspiracy as framed, which is difficult to do from this distance; for example, there may be a low-level classification of the fact of a fellow office worker having received a speeding ticket, the breach of which would I would posit as far too remote to be relevant to the issue of whether a defendant had a serious intent to communicate classified DNI].

Put another way: it would be obviously germane, & undeniably powerful, evidence, as to the existence of an agreement between A & B to communicate classified DNI, that A had in fact on some occasion passed on to B a piece of classified DNI proven to be such, & that B had passed on that same information to an agent of a foreign power.

And it would be still germane, though not as powerful, evidence as to the existence of such an agreement, that A had in fact on some occasion passed on to B a piece of classified information proven to be such, as distinct from classified DNI proven to be such.

It MIGHT even be germane that A had a proven inclination to pass on to B various pieces of information associated with the government generally, & with this sensitive area particularly, whether or not classified, but nonetheless still someone ’sensitive’ [or at least arguably so]. But none of the latter two types of proffered evidence would be relevant to a count of having actually communicated classified DNI.

I would not wish to be seen as suggesting that this is at all easy for judges, to say nothing of juries, involved in conspiracy cases where the government chooses to rely on evidence of substantive crimes to support the conspiracy count: all this hearing of evidence relevant to one issue but irrelevant to another carries a huge risk of misunderstanding.

Nor do I exclude the lawyers involved for the parties as sources of confusion: It’s a tricky business [& those–like me– who have a fatal attraction for it, might also be suffering from some mild form of masochism].

But appreciate: Secret Steve Aftergood isn’t predicting the inevitable demise of the government’s case; rather, he’s suggesting that demise as a probability. I see bmaz as going beyond that & suggesting the outcome as a virtual lock, against which I’m not prepared to bet [I’d have to be there to dare an informed comment.] but nonetheless still NOT an inevitability. I see the logical extension of where you are trying to go as precisely that inevitability, & I just say I cannot agree.

I do hate them and can see no reason why you wouldn’t have understood.
I spent a year once cleaning bed pans. I would guess tht you never had that pleasure.

sure sounded as if you were making excuses by bringing up others who have gotten away with undermining U.S. national Security