THE HILL
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By Kristina Wong
Lawyers for troops facing charges of mishandling classified information are using the “Clinton defense” to argue for leniency.
A lawyer for a 29-year-old sailor facing a felony charge for taking and keeping six photos of a submarine’s propulsion system cited Hillary Clinton‘s mishandling of classified information this week to argue he should get probation instead of jail time.
In the case, Petty Officer 1st Class Kristian Saucier was facing up to 78 months in prison for his conviction on mishandling information. But a federal judge on Friday sentenced him to 12 months instead, as well as six months of low-level home confinement, three years post-release supervision and 100 hours of community service.
Greg Rinckey, Saucier’s lawyer, said that while the judge indicated Clinton’s case did not factor into the sentencing, he believes it played a small, albeit favorable role.
“Honestly did it help our case? I’m sure it did,” Rinckey said.
“We were very concerned that some people that are in high, powerful positions within the United States are selectively prosecuted. So I think it was a valid rationale,” he said.
Clinton will also be mentioned in a separate case involving Maj. Jason Brezler, who is being discharged from the Marine Corps for mishandling classified information, according to his lawyer Michael Bowe. A hearing in federal court is scheduled for October.
Brezler used his personal email account in 2012 to send a classified briefing document to fellow Marines in Afghanistan, warning about the potential threat posed by an Afghan police chief. Brezler self-reported his actions to the military.
“The FBI has found that Secretary Clinton was ‘extremely careless’ in her handling of classified information by, among other things, intentionally setting up a secret home server housing highly classified information,” said Brezler’s lawyer, Michael J. Bowe.
“Nevertheless, the current commander-in-chief has publicly stated that none of this impairs her ‘excellent ability to serve’, including as the next commander-in-chief,” he said. “If that is so, then the current commander-in-chief should apply the same standard to Maj. Brezler and all those serving in his administration who have been found unfit to serve for far, far less alleged misconduct.”
Clinton was investigated by the FBI for criminal wrongdoing in setting up a private email server in her basement, which she used to conduct official business while serving as secretary of state.
The FBI found that a total of 113 Clinton emails contained classified information at the time they were sent, but found no intent of criminal wrongdoing and did not recommend prosecution.
Clinton has since defended her claims that she “never sent or received” classified information on her private server since none of them were marked classified. She also said FBI Director James Comey said her answers have been “truthful and consistent,” though she later clarified she specifically meant the answers she gave the FBI were truthful, and consistent with what she’s said publicly.
Lawyers say the treatment of Clinton will be a factor in how future cases of mishandled classified information are addressed.
Bradley Moss, a lawyer specializing in national security and security clearance law, said he did not expect the Clinton defense to necessarily be effective.
Still, he said there could be value in using it to sway judges’ perception of the reasonableness and appropriateness of a punishment.
“It’s being brought in to say, ‘Look, my guy is a simple rank-and-file person who did these three little things. Hillary Clinton … did all this, and they didn’t do anything to her,’ ” Moss said. “It’s just being thrown in to try to sway the judge however little much it can, to say that something stinks in the state of Denmark.”
“It’s meant to be something that says, ‘And given everything else I’ve told you, let me throw on this one last piece to try to push you across the finish line to get you to agree with my theory,’ ” he added. “It’s just an additional piece of leverage … just to try to put some icing on the cake.”
Moss said the defense could be more relevant as Clinton’s answers to the FBI remain a political story. Republicans are pressing for perjury charges against the former secretary of State over her testimony to the House Benghazi committee.
“I’m sure other attorneys will use it in the future, especially now that more and more seems to be coming out about how much Hillary knew and whether or not she committed perjury during her testimony,” Moss said. “I predict it will be raised continuously in the future.”
Some rank-and-file troops also see a double standard when it comes to the rules for handling classified information.
All troops and Pentagon personnel are required to take an annual online training course on how to protect sensitive and classified information, along with the systems that hold the information.
The training, viewed by The Hill, features virtually simulated scenarios where a coworker urges unsafe practices, and users have to make the right decisions. A sailor told The Hill there’s an unofficial version circulating with Clinton’s face “Photoshopped” onto the coworker.
“Store sensitive data only on authorized systems. Don’t transmit, store, or process sensitive information on non-sensitive systems,” the training instructs.
Violations of the rules for handling classified materials can result in a loss of security clearance and other administrative or criminal measures.
A former head of Navy intelligence, Rear Adm. Thomas Brooks (Ret.), wrote about the discrepancy this month in a Navy journal that’s being widely read among the military.
“For years into the future, people accused of mishandling classified information will be using the ‘Clinton Defense,’ ” he wrote in the August issue of Proceedings Magazine.
“Were Mrs. Clinton still a government employee, administrative actions could be taken against her, to include the loss of clearances and possibly termination. But she is no longer a government official, and no action of any kind is likely to be taken,” he wrote.
“Other government employees will be held to the letter of the law, sometimes applied in what appears to be an arbitrary and capricious fashion,” he said.
Brooks cited Brezler’s case, as well as the case of a Navy reservist who was recently punished for accidentally possessing classified material on a personal thumb drive.
Moss said if Clinton were still a government employee, she would likely be facing administration action and never be able to hold a security clearance again.
“Unless she’s the president, and then she’s exempt,” he said. “If Hillary Clinton had to go through a security clearance process, she’d be in real big trouble.”
Brezler’s attorney said it would be the “ultimate hypocrisy” if Clinton became president and Brezler was discharged from the Marine Corps under her tenure.
“Certainly, if Secretary Clinton becomes the next commander-in-chief it would the ultimate hypocrisy for her to declare others unfit for service based on alleged misconduct equal to or less serious than that she herself engaged,” he said.