A number of Republicans, including Michael Mukasey, former judge, and Attorney General, have advocated for mens rea reform. (Mens rea is the state of mind required of a defendant guilty of a crime.) So important was the proposed mens rea statute that this group helped derail bipartisan criminal justice reform that did not include it, legislation that would have ameliorated mass incarceration. Their ardor for mens rea reform makes all the more curious their beating the drum for the prosecution of Secretary Hillary Clinton for using a private email server to communicate with state department employees.
Republican support for mens rea reform should lead in the opposite direction – backing FBI Director James Comey’s decision to decline prosecution. According to the Heritage Foundation, mens rea reform is supposed to prevent prosecutorial overreaching, charging “morally blameless people” who unwittingly commit acts that only after the fact critics label a crime. In response, the proposed Senate bill would require that the defendant was “practically certain” his actions were prohibited by the law. Nothing about the Secretary’s conduct comes close.
In fact, existing criminal laws about the misuse of classified information have the very defects with which these reformers should be concerned. Criminal intent is sometimes specifically described, sometimes not; prosecutors have considerable charging discretion, a “bit of a mess,” one scholar noted.
One of the more serious charges requires that that the participants had reason to believe that the disclosure of classified information would be used “in any manner prejudicial” to U.S. safety, or to “benefit” a foreign government, a standard that even Mukasey concedes does not apply. This statute has been used to prosecute those who turn classified documents over to foreign governments, or to the press or even private organizations.
The two criminal statutes, urged by Mukasey in the Clinton case, could not be more vague. One, a felony, prohibits those with “national defense information” to allow its removal through “gross negligence.” To Mukasey, Comey’s comment that Clinton and her staff were “extremely careless,” is enough. His position is curious. There was no “finding” here, only a statement that there was some evidence of carelessness. More important for the mens rea reformers, gross negligence is ambiguous. It is typically synonymous with “recklessness,” a “conscious and voluntary disregard of the need to use reasonable care, which is likely to cause grave injury or harm to persons, property or both.” Perhaps that’s why prosecutors charged this only once in the past 99 years, as the Wall Street Journal reported, a case involving an FBI counterintelligence accused of allowing his lover, a Chinese double agent, to gain access to classified documents. And the government declined to prosecute when officials accidentally left classified information in surplus cabinets that found their way to a New York prison.
Mukasey insists that prosecutors should have used the misdemeanor to which General David Petraeus pled guilty, “knowingly” removing classified information. Petraeus copied classified information into notebooks, including power point briefings on the Afghan war, took them home and shared them with his biographer/lover. Although overheard on FBI tapes acknowledging that the information was classified, he lied to the agents. Comey, involved in the plea negotiations, knew the difference between Clinton’s acts and this. So should a former Attorney General.
Clinton’s emails went to the address, “state.gov.,” to officials with security clearances, without the intent to hurt her country; indeed, just the opposite. Her motive, convenience, is the only one that makes sense. The Secretary is a workaholic, holding briefings at dawn, on the job late at night, when she was not travelling around the world. (The subject line of one email, reflecting that schedule, asks, “Are you up?”) Her blackberry allowed her to get information day and night; up until then unclassified state department computers were not programmed to forward information to an unclassified blackberry. Nor was there any effort to conceal, as Comey noted. During her tenure, the rules permitted private email accounts; Bush Secretary of State Colin Powell had one. Regulations were about record preservation and followed; “state.gov” emails were archived and copied.
Comey agreed that “a very small number” of the emails ― three ― “bore markings indicating the presence of classified information.” They were buried in an email chain; none marked classified were sent directly to the Secretary. What were the markings? Comey testified that they were ”tiny little classified markings,” a “c” with parentheses, not in the subject line as protocol required and that a “busy person who has sent and received over 30,000 emails just might miss” them.
Prosecutors are supposed to make certain that similarly situated defendants are treated similarly. At 35,000 feet in the air, everything looks similar, a management lapse blurs with an intentional disclosure, when they are not. From that vantage point —or even closer to earth - calls for further criminal investigation by those ardently advocating for mens rea reform look like hypocrisy, or worse, politics.