Six weeks ago, Hillary Clinton got let off the hook for transmitting highly classified e-mail through an unauthorized e-mail system in a way that almost certainly allowed foreign espionage services access to them. FBI Director James Comey called her “extremely careless” but claimed he needed intent to recommend prosecution. On Friday, Kristian Saucier faces several years in prison for taking pictures on his submarine for his own use, and his attorney now wants the court to consider what is being called “the Hillary defense” — a lack of malicious intent that negates prosecution, or at least prison time:

A Navy sailor facing the possibility of years in prison for taking a handful of classified photos inside a nuclear submarine is making a bid for leniency by citing the decision not to prosecute Hillary Clinton over classified information authorities say was found in her private email account.

Petty Officer First Class Kristian Saucier, 29, is set to be sentenced Friday on a single felony charge of retaining national defense information without permission. In May, Saucier pleaded guilty in federal court in Bridgeport, Conn., admitting that while working on the U.S.S. Alexandria in 2009 he took and kept six photos showing parts of the sub’s propulsion system he knew to be classified.

The defense and prosecutors agree that sentencing guidelines in the case call for a prison term of 63 to 78 months, but defense attorney Derrick Hogan cited the treatment of Clinton as he argued in a filing last week that Saucier should get probation instead.

Saucier pleaded guilty to one count of unauthorized retention of classified information — images of the systems on board his submarine. Those are classified for good reason, of course; the nation’s defense relies heavily on both attack and missile submarines. Any edge we provide our enemies could make those defenses less effective. However, Hogan argues that Saucier never intended to transmit them to anyone else, never put them in position to be accessed by outside intelligence services, and wanted them only as mementoes. The government has not argued otherwise, and on top of all that, Saucier is a first-time offender with a good service record.

That’s just a warm-up. Hogan throws a gut punch at the Department of Justice, which was only too happy to accept Comey’s recommendation on Hillary Clinton. After citing numerous cases in which the courts either treated defendants under worse circumstances with leniency and where the DoJ didn’t bring charges at all, he reminds the court of the curious treatment the former Secretary of State received:

Most recently, Democratic Presidential Candidate and former Secretary of State Hillary Clinton (hereinafter “Clinton”) has come under scrutiny for engaging in acts similar to Mr. Saucier. FBI Director James Comey (hereinafter “Comey”) stated that there was “110 emails and 52 email chains” that were deemed classified on Hilary [sic] Clinton’s personal servers collected in 2014. Of those emails, 8 of these chains contained “top secret” information, 36 contained “secret” information, and 8 contained “confidential” information. Additionally, 2,000 emails were later deemed confidential. Comey stated that “none of these emails should be on personal servers,” however, the FBI recommended Ms. Clinton not be brought up on any chargers [sic] as she lacked “intent.” In our case, Mr. Saucier possessed six (6) photographs classified as “confidential/restricted,” far less than Clinton’s 110 emails. Furthermore, Mr. Saucier pleaded guilty to 18 U.S.C. 793(e), which does not require intent. It only required that he had “unauthorized possession” of the photographs. Wherefore, it will be unjust and unfair for Mr. Saucier to receive any sentence other than probation for a crime those more powerful than him will likely avoid.

In essence, Hogan accuses the DoJ of selective prosecution. On one hand, they claim to need a showing of malicious intent when it comes to Hillary Clinton, whose entire e-mail server scheme was designed to thwart the Federal Records Act and legitimate Congressional and judicial oversight over the State Department and her activities. On the other hand, they’re trying to throw the book at a sailor whose only intent (misguided as it might have been) was to have a few souvenirs of his time serving his country.

Hogan misses another potential nugget on DoJ double standards, at least on sentencing. The late Sandy Berger stole highly classified documents from the National Archive in 2003 and destroyed them, ostensibly while “assisting” the 9/11 Commission. It was widely presumed that Berger was covering up his own actions as National Security Adviser to Bill Clinton or for Clinton himself. All Berger got for that was two years’ probation, 100 hours of community service, and a $50,000 fine — based on an agreement with the Bush-era DoJ.

As Hogan also points out in his brief, the violations that Saucier committed are hardly unknown in the service. They are almost always handled through military channels, usually in the form of naval non-judicial punishments — reduction in rank and seizure of pay. Saucier was still on active duty when the investigation began, and it should have been handled through Saucier’s chain of command. The DoJ literally made a federal case out of this, but couldn’t wait to take a pass on a Secretary of State running secret communications operations that practically delivered highly classified intel into the hands of our enemies. That disparity may be many things, but justice it is not.

If the judge is interested in justice, he’d dismiss this case with prejudice both as a rebuke to overprosecution of Saucier and as a consequence of the political dodge that let Hillary off the hook. Instead, the best that this sailor can hope to get on Friday is probation rather than six-plus years in prison. If the outcome involves any prison time at all, it will be a travesty.

Front-page photo courtesy of the Saucier family.

Update: Fixed final sentence for clarity.