Due Process for My Cronies, But Not For You

The concept of “mens rea” – or requiring proof of a “guilty mind” – helps protect due process in a world where people are subject to thousands of obscure and vague laws and regulations.

Politicians often have double standards about whether such proof should be required for a conviction. Many support it for their political allies, but oppose it for their ideological enemies. They also often oppose it for ordinary people.

For example, when the FBI declined to recommend former Secretary of State Hillary Clinton’s indictment for violating the Espionage Act, the Center for American Progress, a partisan think-tank Clinton was “instrumental” in founding, celebrated it as supposedly applying “a legal concept called mens rea.”

As Jacob Sullum notes in Reason, “In recommending that the Justice Department not bring charges against Clinton, FBI Director James Comey distinguished her ‘extremely careless’ handling of ‘very sensitive, highly classified information’ from previous cases involving ‘intentional and willful mishandling.’” Many commentators criticized Comey’s decision, arguing that the statute Clinton was accused of violating, 18 U.S.C. § 793(f), requires only “gross negligence,” not intent, and that Clinton’s extreme carelessness constituted “gross negligence.” Former federal prosecutor Andy McCarthy argued that replacing the words “gross negligence” with “intent” rewrote that statute to serve political ends.

Former Justice Department prosecutors and FBI agents have argued that the FBI’s investigation was a whitewash that gave Clinton preferential treatment and prematurely destroyed evidence and immunized wrongdoers who might otherwise have cooperated. As law professor Jonathan Turley noted in USA Today, the bizarre “overlapping immunity deals” given to Clinton’s aides and staff eliminated any incentive for them to provide evidence of Clinton’s wrongful intent, making it “unsurprising that Comey did not find evidence of ‘intentional misconduct.’”

But Clinton’s allies, such as Senate Democrats and the Center for American Progress, vociferously oppose extending mens rea protections to ordinary Americans and business owners.  As legal scholars like the Manhattan Institute’s James Copland have noted, “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.”

More from Reason’s Jacob Sullum:

Consider the retired racecar driver on a snowmobile outing in Colorado who got lost in a blizzard and unwittingly crossed into a National Forest Wilderness Area, the Native Alaskan trapper who sold 10 sea otters to a buyer he mistakenly believed was also a Native Alaskan, and the 11-year-old Virginia girl who rescued a baby woodpecker from her cat.

The first two of these incidents resulted in misdemeanor and felony convictions, respectively, while the third led to a fine (later rescinded) . . . All three qualify as federal crimes, even though the perpetrators had no idea they were breaking the law—a kind of injustice that would be addressed by reforms that opponents falsely portray as a special favor to corporate polluters and other felonious fat cats.

The federal code contains something like 5,000 criminal statutes and describes an estimated 30,000 regulatory violations that can be treated as crimes. . . Innocent acts, honest mistakes, and simple accidents can lead to criminal convictions . . .That’s a serious problem . . . as demonstrated by the bipartisan support for mens rea reform in the House of Representatives.

Yet Senate Democrats dismiss the proposed changes, which would add culpability requirements to statutes that do not address the issue, as “corporate protection.” They blame Republican insistence on mens rea reform for imperiling a criminal justice reform bill that until recently seemed likely to pass this year.

President Obama has excused Clinton’s mishandling of classified information by citing her alleged lack of “intentionally” engaging in wrongoing that would “put America” in “jeopardy.”  Yet, his administration opposes an intent requirement when doing so might make prosecuting a hapless small business owner more difficult.

Senate Democrats’ cynical objections to mens rea reform were criticized in a recent interview with Reason TV by former Massachusetts ACLU leader Harvey Silverglate. “There's no way of overestimating the cynicism of these people. They’re saying, ‘It would be a terrible thing, because the people we don't like—corporate executives—they will be able to get off by arguing that there’s absolutely no criminal intent on their part. So you want absolute criminal liability for people you don't like. However, when they come at you, suddenly you say, ‘Well, I didn’t intend to break the law.’”