"And 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," said Michael Bowe.
Bowe represents Maj. Jason Brezler, who used his personal email account in 2012 to send a classified briefing document to the operations officer at a U.S. base in Afghanistan about Sarwar Jan, an Afghan police chief who had recently arrived at the installation. Brezler had kicked Sarwar off a different U.S. installation two years earlier for unethical behavior.
Seventeen days after Brezler sent the email, a boy working as one of Sarwar's personal servants killed three Marines on the base: Staff Sgt. Scott Dickinson, 29, Cpl. Richard Rivera, 20, and Lance Cpl. Greg Buckley, 21.
Brezler has filed a lawsuit in a U.S. district court challenging a board of inquiry's December 2013 recommendation that he be discharged for sending the email from his personal account and taking classified documents back home from Afghanistan so he could write a book. The Marine Corps has agreed not to discharge Brezler until October while his lawsuit moves forward. The federal judge in the case has vowed to hear arguments by then.
The Washington Post first reported on Thursday that Bowe would incorporate FBI Director James Comey's decision not to recommend that Clinton be prosecuted for mishandling classified information into his argument for Brezler.
Democratic presidential candidate Hillary Clinton speaks to guests gathered for a campaign rally at the University of Wisconsin-Madison in March.
Photo Credit: Scott Olson/Getty Images
Bowe noted that Comey called Clinton "extremely careless" as secretary of state for sending and receiving classified information using personal email address hosted by private servers, yet President Obama told Fox News in April that Clinton's use of email did not take away from "her excellent ability to carry out her duties."
"If that is so, then the current commander-in-chief should apply the same standard to Maj. Brezler and any service member under his command who have been found unfit to serve for far, far less alleged misconduct," Bowe told Marine Corps Times.
091215-M-6770H-036 U.S. Marine Corps Capt. Jason C. Brezler, with 3rd Battalion, 4th Marine Regiment, meets with Afghan leaders in Now Zad, Afghanistan, on Dec. 15, 2009. Marines meet with town elders to discuss the reconstruction process. DoD photo by Cpl. Albert F. Hunt, U.S. Marine Corps. (Released)
Photo Credit: Cpl. Albert F. Hunt/Marine Corps
Boards of inquiry make their decisions based on a preponderance of evidence, while the burden of proof for convicting someone of committing a federal crime is beyond a reasonable doubt, VanLandingham said. That means it is easier to administratively discharge a service member than it is to successfully prosecute someone in federal court, she said.
While the FBI found that Clinton had been careless, investigators determined that her carelessness did not rise to the level of intentional misconduct, VanLandingham said.
But Guy Womack, a military defense attorney in Houston, said the U.S. code makes clear that negligent behavior does not have to be intentional for it to be considered criminal.
Since the same statute of the U.S. code applies to Clinton and Brezler, Womack believes that Bowe can successfully argue that his client should not be discharged from the Marine Corps.
"It's a valid argument and it's one that would resonate with most Americans," said Womack, a retired Marine lieutenant colonel.