For instance, the testimony from Assistant Attorney General Leslie Caldwell notes: “Federal statutes prohibiting a wide range of white collar crimes protect the public from fraudulent conduct by corporations and their officers, directors, and employees. Applying a default mens rea to these statutes might insulate culpable individuals, especially senior corporate executives, who deliberately close their eyes to what otherwise would be obvious to them.”
Senate Republicans have different views about whether to push for mens rea. Sen. John Cornyn, the chamber’s No. 2 Republican and sponsor of the bipartisan sentencing-reform bill, isn’t taking a hard line. He supports mens rea language but said last month that “I don’t want to kill this bill over that.”
But Republican Sen. Orrin Hatch said mens rea is vital.
“If you don’t put mens rea in there, you are allowing irresponsible prosecutors to indict people without any basis other than rumor,” he said in the Capitol Tuesday evening.
Asked Tuesday in the Capitol if inclusion of mens rea is needed to steer a bill through the full Senate, Hatch replied: “I think it is. Well, we could pass it separately, but I think it is necessary. I think any anticrime bill that doesn’t have mens rea in it is a deficient bill.”
Senate Judiciary Committee Chairman Chuck Grassley, a lead backer of the bill that cleared his committee last year without mens rea, told reporters Tuesday that the point of Wednesday’s hearing is to “get some understanding among people of what the problem is and how it fits in with the bill.
“I don’t have any idea how it fits into the floor consideration of the bill,” Grassley said. “But it is something that has been expressed to me that is very essential that we try to work something out, both within the Senate and then eventually between the Senate and the House.”
Grassley is approaching the hearing with caution. He said Tuesday that he’s “very concerned” that the effort to address mens rea could jeopardize the wider criminal-justice-reform package.
And while Goodlatte has taken a tough line, not all advocates of mens rea agree it needs to be part of the current effort—including the Koch brothers. The billionaire conservative activists are part of the criminal-justice-reform push, and while they say mens rea should be broadened, they don’t want the dispute to upend the wider negotiations.
“We support the Senate Judiciary criminal justice reform bill that does not have mens rea reform. We also support the House Judiciary bill that has mens rea reform and was supported by Democrats ... and Republicans in the House,” said Mark Holden, general counsel for Koch Industries, in an email.
“As I have said several times, we want to see comprehensive federal criminal justice reform passed as soon as possible, and we will support a bill that does not have mens rea reform,” he said.