Republicans in the House have proposed legislation that would eliminate the “Clinton defense,” a reference to Hillary Clinton’s argument that she should escape prosecution because she did not intend to violate the law when she set up her private email system and mishandled classified information.
“Someone could argue the law could be called, ‘We meant what we said the first time,'” Texas Rep. John Ratcliffe told the Washington Examiner in explaining his proposal, the “Classified Information Protection Act.”
His bill is a response to the decision of military personnel to try using the same defense when they face charges under the Federal Records Act and the Espionage Act for exposing classified information. Some of them have argued that like Clinton, they never intended to violate the law.
Examples include Navy Petty Officer First Class Kristian Saucier, who in August was sentenced to twelve months in prison for going home with six photographs of the submarine engine room in which he worked, and Marine Corps Maj. Jason Brezler, who used a personal email address to send a message to fellow Marines in Afghanistan with information about a classified threat. Brezler was discharged and faces a federal court hearing in October.
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Though Ratcliffe’s proposal is not aimed directly at Clinton, it comes amid a growing chorus of congressional voices are calling on the FBI to reopen its investigation of the Democratic nominee for president.
Testifying before members of Congress on Wednesday, FBI Director James Comey insisted that he made the right choice by vindicating Clinton in July, arguing that if an employee in his bureau had mishandled classified information in a manner similar to the former secretary of state, they might be “disciplined in some serious way,” but that he was certain they “would not be prosecuted criminally.”
Shortly after the hearing, Texas Republican and House Science Committee Chairman Rep. Lamar Smith issued a statement rejecting Comey’s argument. Among the issues Smith pointed out were the revelation this month that Clinton’s staffers destroyed some of her old devices by smashing them with hammers, and the ongoing refusal of two IT staffers, Paul Combetta and Bryan Pagliano, to testify before Congress, despite receiving immunity deals from the Justice Department.
While the passage of Ratcliffe’s legislation could force the Justice Department to bring charges against Clinton in the event an investigation is reopened, Ratcliffe said that is not his focus. “It just seems to me that, even though it happened this time with Hillary Clinton, what would be worse is if it were allowed to happen again, and if her case were allowed to be held up as the precedent,” he said.
“That’s really the intent behind it, to make it sure it can’t happen again, and there’s clarification with respect to the fact that intent to harm the United States is not an element, and should not be an element,” Ratcliffe said. “If someone is so grossly negligent in handling America’s most sensitive national security information, there should be consequences for that whether it was intentional or grossly negligent.”
Cosponsors of the proposal include Republican House leaders who have led most of the congressional investigations into Clinton: Judiciary Committee Chairman Rep. Bob Goodlatte of Virginia, Oversight Committee Chairman Rep. Jason Chaffetz of Utah, and Select Committee on Benghazi Chairman Rep. Trey Gowdy. Texas Rep. Will Hurd, a former CIA officer and chairman of Oversight’s subcommittee on Information Technology, is serving is another cosponsor.
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Ratcliffe, a former prosecutor for the Justice Department, said that while ending the “Clinton defense” and reopening the FBI’s investigation may be similar in effect, the two are not necessarily identical. But he said either would allow prosecutors to deal with “extraordinary” circumstances, like those in Clinton’s case, when they arise.
“The case was extraordinary in the sense of having the husband of a subject meet with the attorney general, having an extraordinary press conference like the one [Comey] held, extraordinary immunity agreements, extraordinary interview circumstances where key witnesses sit in on the interview of a subject of an investigation, extraordinary missing and destroyed and deleted evidence,” he said. “All of this sort of goes to the point that everything about this case has been extraordinary, to the point it certainly ties into the fact that I think she has been treated differently, in my mind, anyone else would have.”
“I take the FBI director at his word that if he is compelled by new or additional evidence, he will reopen the investigation, because jeopardy has not attached,” he added. “I think it ought to be reopened now based on the evidence available, so we disagree on that. But I do think some additional information and testimony could come out. And I would hope, as Director Comey said, if he were persuaded by new or additional evidence, that he would reopen the investigation.”
