The “Hillary Standard” Affirmative Defense – Criminal Law CLE* (pt. 1 of ??)

I admit, I am still somewhat bewildered as to why James Comey decided not to recommend an indictment for Hillary Clinton for violating the Espionage Act. The pertinent part of the statute says:

Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—Shall be fined under this title or imprisoned not more than ten years, or both. (emphasis added)

Director Comey said that Secretary Clinton was “extremely careless,” but such conduct did not suffice to support bringing charges:

You’ll forgive my confusion, since “gross[ly]” is synonymous with “extremely” and “negligen[t]” is synonymous with “careless”:


The basis for the non-recommendation was that

Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent [reminder: the statute only requires a showing of gross negligence]. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past. In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here. (emphases added)

Again, I am confused, since “clearly intentional and willful mishandling” imposes a higher mens rea requirement than the statute, which only requires a showing of “gross negligence.” The left has argued that Comey’s non-recommendation is nevertheless fair because the statute is “stunningly broad” and in need of reform; but I thought they were the ones who vehemently opposed tightening mens rea requirements in federal criminal statutes generally? It is hard not to see a double standard at play when Democrats invoke the “stunningly broad” Espionage Act to call for the prosecution of individuals they view as jeopardizing national security, but then celebrate the non-prosecution of someone who we know jeopardized national security.


But I digress. More to the point, apparently – according to Director Comey – “potential violations” of a national-security-related statute which were committed by the Secretary of State are not worth pursuing.

Hillary Clinton - Extremely Careless

Accordingly, following this non-recommendation, individuals similarly situated to Clinton have wondered if they could receive the same lenient treatment. For example, Kristian Saucier was a petty officer who captured six photographs of a nuclear submarine’s propulsion system which he knew to be classified at the time he captured the photos. After an investigation began into the matter, he destroyed hardware that would have contained those photos.

He is now pleading for leniency in light of, among other things, the FBI’s decision with respect to the Clinton matter. Nevertheless, unlike Clinton acolytes who have insisted from the get-go that all the brouhaha over her e-mail server was a misunderstanding and much ado about nothing, Saucier’s prosecutors seem unamused by the comparison, as their court filing makes clear:

The defendant stands convicted of retaining national defense information, which he himself created….He subsequently obstructed the investigation of that offense by destroying evidence….[C]onsidering the seriousness of the offense, the need to promote respect for the law, to afford adequate deterrence to criminal conduct and to provide just punishment for the offense, a sentence of incarceration [of 63 months] is warranted….the defendant is grasping at highly imaginative and speculative straws in trying to…draw a comparison to the matter of Sec. Hilary [sic] Clinton….

I have seen Elizabeth Warren time-and-again rail against Republicans for ostensibly aiding and abetting a legal double standard in this country, wherein, when it comes to going after “the wealthy and the powerful,” “government officials fret about unintended consequences if they’re too tough.” In this world, “the government regularly accepts token fines and phony promises to do better next time.” In the meantime, everyday people are stuck footing the bill while simultaneously being subject to prosecution for far more inconsequential slip-ups and infractions.

I agree with Sen. Warren that, by way of prosecutorial enforcement, “[t]here are two legal systems….one…for the wealthy and the powerful….; [and one] for everyone else.” I would just dub the former system the “Hillary Standard”:

It is fascinating to see a criminal defense attorney argue for leniency by invoking this, noting that “Hillary Clinton…engag[ed] in acts similar to” his defendant, and thus it would be “unjust and unfair” to sentence the defendant to anything other than probation “for a crime those more powerful than him will likely avoid.” This “blatant double standard” should be made an affirmative defense across-the-board:

Defendant: “But, Your Honor, I only engaged in [conduct synonymous with the statutory offense], not [terms of the offense], just like Hillary Clinton.”

Judge: “Good point. In light of the Hillary Standard in effect in this case, you are hereby sentenced to a slap on the wrist and a stern warning never to do it again.”

Defendant: “This is still all just a big misunderstanding; but thank you, Your Honor. You are a true public servant.”

Judge: “You’re welcome. Case dismissed.”


Elizabeth Warren likes to rail about the appearance of rigged justice and the need to fulfill the promise of equal justice under law. Well, as former United States Attorney General Michael Mukasey pointed out,

The simple proposition that everyone is equal before the law suggests that Mrs. Clinton’s state of mind…justifies a criminal charge of one sort or another.

Just ask the family of Kristian Saucier about it. Time will tell whether the newfound Hillary Standard defense works for him as well as it did for her.

*Disclaimer: The use of the acronym “CLE” is (obviously) tongue-in-cheek. You cannot get continuing legal education credit for reading my ravings. Except in the state of Petoria

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