In a private meeting last week, top officials from the White House and Koch Industries agreed a controversial change to white-collar prosecutions should go if it jeopardizes the viability of sentencing reforms on Capitol Hill.
Koch Industries general counsel Mark Holden huddled Thursday with White House counsel Neil Eggleston and the president's senior adviser Valerie Jarrett to discuss the prospects for criminal justice legislation, which has made recent advances but may run aground because of an impasse over a proposal that would change the burden of proof for some corporate crimes.
One measure that passed the House Judiciary Committee with bipartisan support— the Criminal Code Improvement Act — would require prosecutors in cases as wide-ranging as food tainting and corporate pollution to prove that defendants “knew, or had reason to believe, the conduct was unlawful,” otherwise known as “mens rea.” President Obama and several congressional Democrats have warned the change could derail legislation that otherwise enjoys significant support from both parties.
Holden said that Koch Industries continues to support the idea of changing the legal standard for these crimes to bring it in line with other prosecutions. “The basic principle with any criminal law that deprives people of life, liberty and property is that you need to have an intent standard,” he said. “We believe there should be comprehensive criminal justice reform, which includes mens rea reform.
"However, we have supported the Senate criminal justice reform bill which doesn’t have mens rea reform in it and we are comfortable with that bill," he added. "If mens rea reform is not in the package, that’s not our issue, it is Congress’ issue.”
Jarrett, who said in an interview Monday that she exchanges emails with Holden "several times a week" on criminal justice reform, said he agreed that since "this is not stumbling block to progress, then it would be important to communicate that publicly."
It is unclear how much Koch Industries' willingness to jettison the provision will influence conservative Republicans in the House, who see the white-collar measure as a key component of any sentencing reform package.
Amit Narang, a regulatory policy advocate at Public Citizen's Congress Watch, said the signal from Koch could prove decisive in next year's debate over the issue.
“The Koch’s agreement with the White House on the mens rea issue is crucial to passage of criminal justice reform, and conservatives should certainly follow the Koch’s lead in ensuring that mens rea is not the sticking point that holds up urgently needed sentencing reforms supported by all sides,” Narang said.
Holden said his group intended to continue to collaborate on the issue with White House officials in an effort to enact legislation before the end of next year. "It’s been a great working relationship,” he said.