I’ve spent nearly all of my life, it feels like, being disinterested in Hillary Clinton’s handling of classified information and use of a private email server. (It’s fun, you should try it!) I’m in the camp that believes government information is massively over-classified already; the core problem lies in the arbitrary nature of what gets classified and what doesn’t.

But, I am interested in the most recent way conservatives have tried to use the issue to indict Clinton, figuratively if not literally. They are particularly exercised by two of Clinton’s contentions: one, that she didn’t know a “(C)” marking on certain emails stood for “confidential,” and two, that she had no State Department guidance on classification standards.

This line of defense has right-wingers furious. “Hillary Clinton’s latest email excuse amounts to ‘I’m an idiot,’” thunders Ed Morrissey at The Week. “Any other president who claimed ignorance and stupidity as a defense would be put out of the race in a cloud of humiliation,” shouts the Washington Times opinion page. “Ignorance isn’t a defense for everyday Americans,” exclaims Townhall’s Katie Pavlich.

Conservatives angered by Clinton’s pleas of ignorance should turn their eyes to Congress, where their Republican allies have been diligently trying for months to make ignorance of the law a defense—at least for corporate executives.

FBI Director James Comey has concluded that Clinton did not act with the “necessary criminal intent” that would require prosecution for distributing classified information. The legal term of art for such a standard is mens rea, Latin for “guilty mind.” But many crimes have “strict liability” statutes, with no specific mens rea standard. In those strict liability cases, a violation of the law is enough, regardless of the intention of the criminal.

Strict liability was actually created in the late nineteenth-century to deal with deplorable conditions in factories. Because it was so difficult to get inside the head of the factory owners to suss out their intent, strict liability statutes allowed prosecutions for the safety violations themselves, regardless of whether the employer meant to commit a crime. Today, that’s also true for a lot of the white-collar crimes that corporate executives sometimes—albeit rarely—get nailed for. Robert Weissman of Public Citizen pointed out in testimony before the Senate Judiciary Committee in January that racketeering, conspiracy, the misbranding of food or medical devices, and mail and wire fraud all lack this specific standard.

In fact, the Supreme Court has made it clear that prosecutors don’t always need to prove a defendant intended to break the law, if they find them guilty of “willful blindness.” In Global-Tech Appliances v. SEB, a patent infringement case, the Court ruled that the defendants—who stole the design of a deep fryer—“cannot escape the reach of these statutes by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances.” The upshot: Defendants who argue that they didn’t understand the implications of their actions “are just as culpable as those who have actual knowledge.”

This is where people get the phrase, “ignorance is no defense.” And this is the doctrine Republicans in Congress want to undermine. Making matters worse, they’re doing it in an appalling way: by inserting a provision designed to let corporate criminals off the hook into legislation to reform the criminal-justice system.


Both the GOP and the Democrats have been moving on a track to reduce mass incarceration, with buy-in from strange bedfellows like the ACLU and the Koch brothers. But late last year, the House Republican version of the criminal justice reform bill included a provision that would apply a blanket mens rea standard for all federal criminal cases. They’ve been fighting for it ever since; “mens rea reform” even appears in the Republican platform.

Under the Republican standard, prosecutors would have to prove in all cases that defendants acted with knowing intent, and that they knew the activity was unlawful (or at least should have known).

This would have a far-reaching effect on corporate crimes. One often cited example involves the Peanut Corporation of America, which shipped salmonella-tainted peanuts across the country, sickening hundreds of people and killing nine. Last year, a Georgia court sentenced Stewart Parnell, the company’s CEO, to 28 years in prison on conspiracy charges, as well as the introduction of adulterated food.

If the House Republican provision became law, Stewart Parnell could only be found guilty if prosecutors presented evidence that he knew the peanuts were tainted, and that shipping them would amount to a felony for conspiracy. Given that Parnell probably never wrote an email that said, “let’s ship bad peanuts all over the country, which as you all know constitutes a federal crime,” getting a conviction on actions that killed nine people would be next to impossible. In effect, Parnell would be able to use ignorance of the law as a defense.

A blanket allowance of willful blindness wouldn’t just prevent corporate criminals from paying the price. It would also undermine corporate governance practices in favor of a strategy of not knowing too much. “Corporations collectively may act so that information of wrongdoing is not disseminated to decision-makers who might correct it,” said Public Citizen’s Weissman in his Senate testimony.

To a large extent, this already happens today. Don Blankenship, the CEO of Massey Energy, was convicted last December for conspiring to violate safety standards that led to the Upper Big Branch Mine disaster. Blankenship argued that he didn’t knowingly enter into a conspiracy, and while he was convicted, it was only on a lesser misdemeanor charge. Under the Republicans’ new mens rea standard, even that misdemeanor wouldn’t be prosecutable, unless knowing and willful criminal intent were proven.

The Republicans’ attempt to insert this damaging provision into criminal justice reform has already had a rotten consequence: It’s opened a rift in what had been a bipartisan effort. That’s why the effort looks all but dead this year.

Liberals have speculated that the only reason the Koch brothers teamed up on reducing mass incarceration was to make corporate crimes harder to prosecute through the back door. And to be clear, it’s not like there’s a massive rush to prosecute white-collar crime right now; the purpose of criminal justice reform is to reduce mass incarceration, not to make hard-to-indict crimes even harder. Plus, in the wake of the financial crisis, we should be pushing to make executives more responsible for the actions of their companies, not less.


The same conservatives denouncing Clinton’s statements about classified information as an inadequate “ignorance defense” are political allies of the Republicans pushing for an ignorance defense for corporate executives. Sometimes, in fact, they’re one and the same: Bob Goodlatte, who chairs the House Judiciary Committee, keeps describing Clinton’s email conduct as “careless” and “reckless.” In a letter to FBI Director Comey that said the non-prosecution of Clinton “defies logic,” Goodlatte even cited a part of the espionage statute that allows for prosecution based on “gross negligence” rather than “knowing intent.” But his criminal-justice reform bill would supersede that very statute.

Liberals should also be careful here. If they keep defending Clinton by saying she didn’t know material she distributed was classified, they play into the hands of Republican efforts to immunize corporate criminals. Ultimately, this whole strange debate reveals the dangers of partisans lunging to defend any conduct from a member of their own party and condemn any conduct from the other side. They could have widespread negative ramifications—even if that wasn’t their intent.