In this case, we use “whataboutism” without judgment. Indeed, it might be appropriate and instructive to compare the two situations, especially since their central figures occupy similar positions in our national politics – as de facto figureheads of their parties who had access to highly sensitive. After all, a fundamental principle of our justice system is that the law should be applied equally.
But that does not mean that the two situations are identical or even particularly similar. While our understanding of why the FBI searched Trump’s Mar-a-Lago estate earlier this month remains incomplete, some key differences have emerged.
And applying the Clinton standard may not bode well for Trump as his supporters seem to believe.
As the situation has deteriorated for Trump, his allies and other conservatives have increasingly called for this standard to be enforced. Senator Lindsey O. Graham (RS.C.) has warned suggestively that there will be “riots” if Trump is accused of mishandling sensitive information after “Hillary Clinton installed a server in her sub- floor”. Trump attorney Jim Trusty told Fox News on Monday that he disagreed with the way the Clinton standard was used in 2016, saying it “may not have been the most respectful precedent” – “but I’ll take it in terms of result.”
The editorial board of the Wall Street Journal, meanwhile, played this weekend that if Attorney General Merrick Garland cannot prove that Trump’s conduct was worse than Clinton’s, then “the best judgment is not to prosecute and subject the country to the trauma of a political trial that half of America will suspect to be a case of unequal justice.”
But how similar are the two situations? It’s worth analyzing, using Clinton’s actual standard set by then-FBI Director James B. Comey in July 2016.
In explaining his agency’s recommendation not to prosecuteComey cited the absence of four elements that he said had been present “in some combination” in previous lawsuits involving the suppression or mishandling of classified information:
- “Clearly intentional and deliberate mishandling of classified information.”
- “Large amounts of material exposed in such a way as to support an inference of intentional fault.”
- “Indications of Disloyalty to the United States.”
- “Efforts to Obstruction of Justice.”
Comey concluded, “We don’t see those things here.” So Clinton was not charged.
Let’s take them one by one and compare the evidence against Clinton and Trump.
1. “Clearly Intentional and Deliberate Mishandling of Classified Information”
It is the part of Comey’s decision that has been most challenged in Clinton’s case.
The governing law, the Espionage Act, states that it is a crime to remove national defense information from its “proper place of custody” by “gross negligence.” But Comey said Clinton’s alleged misconduct had to be “clearly intentional and willful” to prosecute – a standard many critics at the time complained of being higher than “gross negligence” because he intent required. Comey even said at the same press conference that Clinton had been “extremely negligent,” which sounds a lot like “gross negligence.”
But if we are discussing the application of the Clinton standard, “clearly intentional and deliberate mismanagement” is that standard.
Comey said Clinton and others should have known not to expose this information on a private server, but “we found no clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information”.
He told a hearing two days later that there was insufficient evidence that Clinton intended to hide his emails. “Our best information is that she put it in place for convenience,” he said, echoing Clinton’s own justification. But there was reason to doubt that the arrangement stemmed strictly from convenience, the Washington Post’s Fact Checker found, citing gaps in Clinton’s various explanations.
Given the disputes over Comey’s reading of Clinton’s intent, it’s hard to compare directly with Trump. But a key difference is that there is ample evidence that Trump resisted abandoning these documents when the government repeatedly came knocking for them.
As The Post reported last week in an in-depth review of known facts:
In a legal filing on Monday, Trump’s attorneys insisted he cooperated with Justice Department requests. In fact, however, the account they presented, along with other documents and interviews, show that Trump ignored multiple opportunities to quietly resolve the FBI’s problems by turning over all classified documents in his possession – including a subpoena to appear before a grand jury that Trump’s team accepted. May 11. Again and again, he reacted with a familiar mix of stubbornness and outrage, causing some in his orbit to fear that he was essentially defying the FBI to prosecute him.
With Clinton, the question was: Did her reasons for creating the private mail server demonstrate her intent? With Trump, we still learn a lot. But there seems to be plenty of evidence to suggest that his intention was to keep these documents, even when the alleged mishandling was brought to his attention.
Indeed, it becomes clear that Trump’s stubbornness played a part in why he was searched. Whether this research was justified or not, it’s not really analogous to Clinton.
2. “Large amounts of material exposed in such a way as to support an inference of intentional fault”
“Large quantities” is, of course, a subjective term. But the quantities differ somewhat in these two situations.
With Clinton, Comey said 113 emails contained classified information, including eight chains of emails containing information classified top secret at the time of their sending. (Many did not include classification marks at the time because they were not official government records.)
With Trump, we still don’t know the full extent of what he brought to Mar-a-Lago. But the partially redacted search warrant affidavit released last week said Trump voluntarily returned 184 classified documents in January, including 25 marked top secret. The search earlier this month revealed 11 other sets of classified documents, including several that were top secret.
We don’t have the definitive numbers – the New York Times last week put the total number of classified documents over 300 — but the government has recovered more classified and top-secret documents from him than from Clinton.
From there, the question is whether the number of documents is considered “extensive” and “exposed” enough to “support an inference of intentional misconduct”.
(It should also be remembered that despite Trump’s claim that he declassified these documents, there is still no evidence that he actually did, and the laws the government cited do not require documents to be classified for a breach to occur.)
3. “Indicia of disloyalty to the United States”
There is no evidence that Clinton sought to hide the information out of disloyalty to his country. Even if you think Comey too readily accepted her convenience explanation, the most readily available alternative explanation is that she didn’t want these documents available because they could harm her political career. It is not the same as disloyalty.
With Trump, the evidence on this front is very sketchy – and “disloyalty to the United States” is a very high bar. We know there was an urgent need to retrieve the documents for some reason, but despite much speculation, we don’t know why.
4. “Attempts to obstruct justice”
That will likely be the crucial difference, perhaps alongside No. 1, if Trump is ever indicted.
As previously mentioned, Trump resisted returning these documents. He has not returned them even after one of his lawyers agreed last year that they be returned. His lawyer also signed a document in June stating that all documents marked as classified had been returned, according to the Times. And the government cited the likelihood that it would find evidence of obstruction to obtain the search warrant.
Precisely what the government believes can reach the level of obstruction, we will have to see.
As for Clinton, she testified before Congress about her private email server as part of the Benghazi hearings. She sat with the FBI in a voluntary interview for over three hours. She also returned tens of thousands of emails.
Her critics, including Trump, have long suggested she engaged in a cover-up because she and her team were deleting numerous other emails and destroying phones. Comey said Clinton’s team passed on 30,000 emails deemed work-related after sorting the documents using headers and word searches, rather than reviewing them individually. This has long been used to suggest that exertion was harmful – often using hyperbolic language involving bleach and acid – but there is no evidence that this is the case. (And there are legitimate reasons to do these things.)
On this point, Comey was firm. He said Clinton may have deleted some work-related emails — and emails recovered by other means confirmed this — but there was no evidence of a cover-up.
“I should add here that we found no evidence that any of the additional work-related emails were intentionally deleted in an effort to conceal them,” he said.
He later added: ‘Although we do not have full visibility because we are unable to fully reconstruct the electronic record of this sorting, we believe that our investigation was sufficient to give us reasonable confidence. that there was no willful misconduct in connection with this sorting effort. .”
The evidence of obstruction, in other words, just wasn’t there in Comey’s estimation. We’ll find out if the Justice Department determines it’s in Trump’s case, and if so, how compelling it is.