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How Hillary’s Defense Doesn’t Apply to the Rest of Us

The opinions expressed by columnists are their own and do not necessarily represent the views of

Editor's note: This column was co-authored by Rafael A. Mangual.

FBI Director James Comey’s statement announcing that he would not recommend prosecuting Hillary Clinton for sending and receiving classified information through her unauthorized offsite email server was remarkable. In essence, Comey articulated facts showing that Clinton was guilty under the clear language of a federal statute, but he argued she should not be prosecuted because she intended to do no wrong. Yet in case after case involving people who aren’t cabinet secretaries or presidential contenders, for matters far less serious than mishandling national-security secrets, federal prosecutors seek criminal penalties for unintentional violations of the law. In a cruel irony, the Obama administration has scuttled one of its own late-term policy priorities—criminal-justice reform—because it opposes affording ordinary people the same defense Comey invoked for Clinton.


In his statement, Comey affirmed that Ms. Clinton had been “extremely careless” in her handling of materials relevant to national security. That’s notable because Comey was reviewing Clinton’s conduct under a statute, 18 U.S.C. § 793, which makes it a felony punishable by up to ten years in prison for individuals entrusted with such materials to permit them “to be removed from [their] proper place of custody or delivered to anyone in violation of his trust,” so long as the removal or delivery was “through gross negligence.” “Gross negligence” and “extreme carelessness”’ are essentially the same thing.

Even though Clinton was thus guilty under the statute, given Comey’s recitation of the facts, the FBI director recommended against prosecuting her because past prosecutions under this statute had involved more intentional conduct, rather than merely the gross negligence required by the law. Whether or not that’s a legitimate exercise of prosecutorial discretion, it turns the federal government’s ordinary position on its head. In most cases, the federal government takes the position that an individual who accidentally violates a criminal rule is guilty of the crime unless Congress explicitly specifies a higher intent standard.

Take, for example, the case of Lawrence Lewis. Mr. Lewis grew up in the projects of Washington, D.C. and worked his way from a position as school janitor to one as the chief engineer at a military retirement home. In 2007, he became a federal criminal. When the home under his charge was flooding, full of sick veterans, Lewis diverted a sewage backup into a storm drain he thought led to the sewage treatment plant. Unfortunately, the drain instead led to a creek, which fed into the Potomac River. Lewis was charged with a criminal environmental infraction that did not explicitly require prosecutors to prove criminal intent. It didn't matter that he was sincerely just trying to help retired veterans in a crisis situation.


Similarly, consider Bobby Unser, a three-time winner of the Indianapolis 500, who was driving a snowmobile near his ranch when he was caught up in a blizzard. Unser abandoned his vehicle to survive, without realizing that in the blizzard he had wound up in a protected federal forest—a crime punishable by up to six months in prison. The government prosecuted, and a federal judge and an appeals panel both determined that Unser was guilty because Congress had not explicitly required criminal intent for prosecution under the statute.

Prosecutions like Lewis’s and Unser’s are hardly anomalous, though they do run against longstanding legal tradition. Traditionally, to be guilty of a crime, an individual had to commit a guilty act (“actus reus” in the Latin) with a guilty mind (“mens rea”). Leading 20th century legal scholars like H.L.A. Hart and Lon Fuller, and leading jurists like Oliver Wendell Holmes and Robert Jackson, decried the concept of a crime without intent. As Holmes quipped, “Even a dog distinguishes between being stumbled over and being kicked.”

Unfortunately, today’s federal criminal code is filled with crimes that do not specify any required criminal intent at all—essentially penalizing innocent mistakes. A 2010 study by the Heritage Foundation and the National Association of Criminal Defense Lawyers found that in the 109th Congress, 64 percent of the newly enacted non-violent crimes penalized accidental violations of the law. And the number of federal crimes continues to grow—with an estimated 4,500 crimes in federal statutes and 300,000 crimes already in the federal regulatory code. Civil-libertarian attorney Harvey Silverglate estimates the average American is unknowingly committing three federal felonies a day.


To protect ordinary Americans like Mr. Lewis and Mr. Unser from being prosecuted for unknowingly violating one of the hundreds of thousands of federal crimes, Congressional leaders of both parties, in both the House and Senate, have authored legislation that would require some showing of intent unless Congress explicitly specifies otherwise—the approach taken in the Model Penal Code and many states. Congress would be free to depart from this “default” standard and require a lesser showing of intent, or even no showing, if it deemed a rule sufficiently important—say, one involving national security. But Congress would have to say so.

Unfortunately, the Obama White House came out against this legislation—and in the process has all but killed the chances of enacting criminal-justice reform, one of the administration’s top legislative priorities for its last year. Hopefully, candidate Clinton—having personally benefited from Comey’s invocation of criminal-intent standards—will have the courage to support extending those very protections to the rest of us.

James R. Copland is a senior fellow and director of legal policy and Rafael A. Mangual a legal-policy project manager for the Manhattan Institute.

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