But would the rank-and-file folks be facing a judge now instead of the humiliation of having their long-held stories so thoroughly debunked for all to see? (Do politicians feel humiliation like normal humans? Clinton doesn’t even seem to be embarrassed.) And can defense lawyers for regular workers use Clinton’s case to argue for more lenient treatment from the Justice Department?
Clinton’s case is extraordinary because she is who she is. But that doesn’t mean she was treated with greater leniency than the average staffer.
Lawyers interviewed Wednesday who specialize in federal employee law agree that prosecuting employees in similar cases is the exception, not the rule.
“Hundreds, probably thousands, of people mishandle classified information every year, but they’re not criminally prosecuted,” said Mark S. Zaid, a Washington lawyer who specializes in national-security employment law. “There is significant prosecutorial discretion.” Most people facing accusations involving classified information “never were or are or will be” criminally charged.
But that does not mean the average federal employee would escape punishment in a way Clinton did.
If Frank Fed did what Clinton did, “he would have lost his clearance and lost his job,” said Gregory F. Greiner, who leads Tully Rinckey’s military and national-security law practice group.
For those not familiar with the ways of Washington, losing a security clearance often is the equivalent of being fired. In some agencies, all jobs or most of the good ones, require a security clearance. Many of the individual contractors who work for those agencies also must have a security clearance. If you lose it, you could lose the ability to work in your field.
On Thursday, Comey was asked at a hearing by House Oversight Committee Chairman Jason Chaffetz (R-Utah) “if Hillary Clinton applied for the job at the FBI, would the FBI give Hillary Clinton a security clearance?”
Comey said he did not want to answer a hypothetical.
“The FBI has a robust process in which we adjudicate the suitability of people for employment in the bureau,” he told Chaffetz.
Zaid is particularly interested to see whether Clinton’s aides, who also sent and received classified emails through insecure servers, get security clearances if she wins the presidency.
“Having seen the hundreds of people I’ve represented over a 20-plus year career who have lost their clearances for doing far less” than Clinton and her lieutenants, Zaid said, “I’m going to be really, really bothered and troubled” if Clinton’s crew emerges unscathed in the security-clearance process.
“If she were currently a federal employee, she would be sanctioned,” said William R. Cowden, a former Justice Department lawyer now with the Federal Practice Group. Lesser penalties include reprimand and suspension without pay.
Instead of punishment, Clinton could get a promotion to president. Democratic and Republican presidential nominees automatically get security briefings and don’t have to apply for security clearances.
While Republicans insist Clinton should be prosecuted for negligence, that is not common, according to Cowden. Prosecutions are almost always intent-based.
“People go around the rules all the time to get their work done,” such as taking classified documents home, he said. “If she was prosecuted, it would be because she was singled out for who she was instead of what she did,” a point Comey also made in his testimony.
But because she was not prosecuted, defense lawyers see a potential opening for their clients.
After David Petraeus, a former general and CIA director, pleaded guilty to a misdemeanor charge of mishandling classified material, Zaid said he used that case to push for leniency for his client “right away. I mean, literally, the ink was not dry.” Prosecutors had considered charging Petraeus with felonies. Zaid’s client also was charged with mishandling classified information.
“We talked to the prosecutors and said, ‘We want the Petraeus deal.’ We got it.”
After Clinton’s non-prosecution, defense lawyers will try to raise the bar for prosecutors.
It takes only one person on a jury, Greiner said, to argue that “this guy didn’t do anything different than what Hillary Clinton did.”