News outlets reported earlier this month that federal investigators have uncovered scant evidence that Hillary Clinton willfully violated federal record law when her subordinates set up a private email server at her Chappaqua manse to handle State Department business.
As the Washington Post reported, “One official said prosecutors are wrestling with the question of whether Clinton intended to violate the rules, and so far, the evidence seemed to indicate she did not.”
Wrestling with intent, especially when it concerns anything a Clinton may or may not have known, is a herculean labor. Oddly enough, though, the very thing that may save Clinton from an indictment is a criminal justice principle that conservatives want to strengthen and liberal groups oppose expanding.
For the past several years, a bipartisan constellation of conservative and progressive groups has come to a rare consensus on a series of criminal justice reforms. The sole exception, which threatens to blow up their fragile alliance, has been mens rea reform. Latin for “guilty mind,” mens rea is a common-law principle that requires prosecutors to prove a defendant intended to break the law.
If one were in an extremely charitable mood, the Clinton email fiasco could be spun as a well-meaning and very busy public servant running afoul of the mountain of federal regulations on the books.
And it is not as if there is any lack of federal laws to break, wittingly or unwittingly. A 2008 analysis by law scholar John S. Baker for the Heritage Foundation identified at least 4,450 federal crimes. As I reported in 2014 for the Washington Free Beacon, that number has only increased, as has the rate at which the federal government is creating new crimes.
For example, it is now a federal crime to conduct “high seas navigation of an unflagged submersible or semi-submersible vessel.” (Sorry, amateur submarine pirates.) It is a federal crime to make an obscene gesture at the Pentagon in order to alarm people. It is a federal crime to use the 4-H Club emblem without approval.
And many of those crimes do not have mens rea protections. In other words, not knowing that it’s illegal to write a letter to a pirate won’t keep the feds off your back. (Sorry, pirate pen pals.)
The Heritage Foundation and several other conservative think-tanks support strengthening mens rea protections. The GOP-led House Judiciary Committee approved legislation earlier this year that would require prosecutors to prove defendants “knew, or had reason to believe, the conduct was unlawful” when federal criminal law fails to provide a standard of intent.
“The idea that the hard left of the Democratic Party likes to threaten businesspeople with jail for not complying with regulations that they’ve written in some cubbyhole somewhere is ridiculous,” Americans for Tax Reform president and reliable quote-machine Grover Norquist told the Washington Post.
The poster child for overcriminalization and mens rea reform is John Yates, a Florida fisherman who was convicted of violating “anti-shredding” provisions in the Sarbanes-Oxley Act, a hefty tome of finance regulation passed in the wake of the Enron scandal. Yates’s crime? Destroying evidence and impeding a federal investigation for throwing three undersized fish from his boat. Under laws originally created to criminalize the destruction of financial records, he served 30 days in jail and lost his livelihood.
Yates appealed his case all the way to the Supreme Court. The Court threw out his conviction and ruled, in its august wisdom, that red grouper are not the same as financial documents.
However, liberal groups like the Center for American Progress argue that expanding mens rea protections will shield deep-pocketed, white-collar criminals from prosecution. A corporate executive, say, whose company wantonly pollutes. Or for that matter, a powerful politician and her fiefdom of bootlickers who set up a secret, unsecured email server to send sensitive government information.
The American Civil Liberties Union came out against the mens rea proposal in a letter to the New York Times earlier this year: “Republican lawmakers who insist on making this issue a quid pro quo are likely doing so not out of concern for the lives, families and communities torn apart by our broken system, but rather to please white-collar and corporate polluter interests who stand to gain the most.”
If Clinton avoids charges—as she probably will, guilty mind or not—and goes on to gain the most powerful political office in the world, she will likely be quite pleased indeed. Something tells me, though, that the ACLU and CAP will not hold up Clinton as an example of two-tiered justice for white-collar scofflaws, and conservatives will not applaud the prosecutorial restraint displayed by the Justice Department.
In the meantime, the rest of us mere mortals will just have to watch our step, sure in the knowledge that somehow, someway, somewhere, we’re probably breaking the law.
C.J. Ciaramella is a writer in Washington, D.C.
