“WHAT SEPARATES THE CLINTON AND TRUMP CASES?
A lot, but two important differences are in willfulness and obstruction.
In an otherwise harshly critical assessment in which he condemned Clinton’s email practices as “extremely careless,” then-FBI Director James Comey announced that investigators had found no clear evidence that Clinton or her aides had intended to break laws governing classified information.
As a result, he said, “no reasonable prosecutor” would move forward with a case. The relevant Espionage Act cases brought by the Justice Department over the past century, Comey said, all involved factors including efforts to obstruct justice, willful mishandling of classified documents and indications of disloyalty to the U.S. None of those factors existed in the Clinton investigation, he said.
That’s in contrast to the allegations against Trump, who prosecutors say was involved in the packing of boxes to go to Mar-a-Lago and then actively took steps to conceal classified documents from investigators.
The indictment accuses him, for instance, of suggesting that a lawyer hide documents demanded by a Justice Department subpoena or falsely represent that all requested records had been turned over, even though more than 100 remained in the house.
The indictment repeatedly cites Trump’s own words against him to make the case that he understood what he was doing and what the law did and did not permit him to do. It describes a July 2021 meeting at his golf club in Bedminster, New Jersey, which he showed off a Pentagon “plan of attack” to people without security clearances to view the material and proclaimed that “as president, I could have declassified it.”
“Now I can’t, you know, but this is still a secret,” the indictment quotes him as saying.
That conversation, captured by an audio recording, is likely to be a powerful piece of evidence to the extent that it undercuts Trump’s oft-repeated claims that he had declassified the documents he brought with him to Mar-a-Lago.”
“According to a search warrant inventory that was unsealed on Friday, the FBI found 11 sets of classified documents, ranging from “confidential” to “top secret,” when it searched former President Donald Trump’s Mar-a-Lago resort in Palm Beach last Monday. The top-secret documents included some that were labeled “SCI,” or “sensitive compartmented information,” an especially restricted category derived from intelligence sources.
On the face of it, Trump’s handling of this information, which he took with him from the White House when he left office in January 2021, raises national security concerns at least as serious as those raised by Hillary Clinton’s use of a private email server as secretary of state. Trump has long maintained that Clinton’s mishandling of classified material when she ran the State Department was egregious enough to justify sending her to prison. But in his case, he says, the documents at Mar-a-Lago, despite their labeling, were not actually classified.
How so? According to a statement that Trump representative John Solomon read on Fox News after the search warrant and inventory were unsealed, Trump had a “standing order” as president that automatically declassified material he moved from the Oval Office to his residence at the White House. That explanation raises additional questions about Trump’s seemingly cavalier treatment of sensitive information”
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“In July 2016, when then–FBI Director James Comey announced that the FBI had not found enough evidence to justify criminal charges against Clinton, he reported that 110 messages in 52 unsecured email chains had been “determined by the owning agency to contain classified information at the time they were sent or received.” He said “eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification.”
By comparison, the FBI’s list of items seized at Mar-a-Lago includes five mentions of “various” or “miscellaneous” top-secret documents, three mentions of “miscellaneous secret documents,” and three mentions of “confidential documents.” We don’t know how many documents were in each set or the precise nature of the information they discussed. But five sets of top-secret documents could easily contain more sensitive information than eight email chains that may have referred to top-secret material only briefly and/or in passing.
Comey said Clinton’s treatment of “very sensitive, highly classified information” was “extremely careless.” On its face, that judgment could support charges under 18 USC 793, which encompasses “gross negligence” in the handling of information “relating to the national defense”—a felony punishable by up to 10 years in prison. But Comey concluded that was not enough to justify prosecuting Clinton”
“Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case….In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice.”
The Mar-a-Lago search warrant was based on U.S. Magistrate Judge Bruce Reinhart’s determination that there was probable cause to believe the FBI would find “items illegally possessed” in violation of three statutes, including 18 USC 793. Although Trump has not been charged with any crime and may never face prosecution, his conduct arguably included some of the aggravating factors that Comey mentioned.
To start with, there is some evidence to support the inference that Trump’s alleged mishandling of classified material was “intentional and willful.” In January, after the National Archives and Records Administration (NARA) raised concerns that Trump had improperly removed documents that were covered by the Presidential Records Act, Trump’s representatives turned over 15 boxes. Noticing that some of the documents were marked as classified, NARA referred the matter to the Justice Department, which obtained additional documents from Mar-a-Lago under a grand jury subpoena in June. Around the same time, The New York Times reports, “a Trump lawyer” gave the Justice Department “a written declaration” saying “all the material marked classified in the boxes had been turned over.”
Judging from what the FBI says it found last week, that was not true. The FBI presumably presented evidence to that effect, possibly based on a Trump insider’s tip, in its search warrant affidavit (which, unlike the warrant itself and the inventory, remains sealed). That apparent misrepresentation may help explain why the search warrant cites not only 18 USC 793 but also 18 USC 1519, which makes it a felony, punishable by up to 20 years in prison, to knowingly conceal “any record, document, or tangible object” with “the intent to impede, obstruct, or influence” a federal investigation. Such concealment, if proven, would qualify as “efforts to obstruct justice,” another aggravating factor that Comey mentioned.
Because the volume, contents, and exact location of the documents seized by the FBI are uncertain, it is not clear whether the records at Mar-a-Lago amounted to “vast quantities of materials exposed in such a way as to support an inference of intentional misconduct,” another Comey criterion. The difficulty of assessing that question underlines how little information we have about the documents that were seized.
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“Here is where Trump’s defense comes in. “The very fact that these documents were present at Mar-a-Lago means they couldn’t have been classified,” his office says. “As we can all relate to, everyone ends up having to bring home their work from time to time. American presidents are no different. President Trump, in order to prepare for work the next day, often took documents including classified documents from the Oval Office to the residence.” In light of that practice, the statement says, Trump “had a standing order that documents removed from the Oval Office and taken into the residence were deemed to be declassified.” It notes that “the power to classify and declassify documents rests solely with the President of the United States.”
Without denying that point, Trump’s critics argue that such a policy would be highly irregular and careless. “Whatever POTUS’ ‘powers’ might be to declassify docs,” former FBI agent Asha Rangappa says on Twitter, “there are good policy and practical reasons…to follow a process, and for that process to be documented and reflected on the document markings themselves.”
Rangappa says “accountability” requires that declassification of a given document be justified by a rationale dealing with the national security implications, which “allows for objections from others if the reasoning is based on an incorrect premise.” She also cites the need to protect intelligence sources from “blowback.” In addition to “being dangerous and bad for [national security],” she says, automatic declassification of any documents that the president happens to remove from the Oval Office would cause “confusion and inefficiency and distortions in our intelligence collection, foreign policy, and defense efforts.”
If “Trump telepathically declassifies hundreds of docs on his way out,” Rangappa adds, President Joe Biden “can telepathically reclassify them immediately, too. See how stupid this gets? Markings would mean nothing. No one would know how to store things.”
Accepting Trump’s argument that any documents at Mar-a-Lago were ipso facto declassified, notwithstanding markings to the contrary, that information would be legally available not just to him but also to the general public, assuming there was no other statutory justification for restricting access. Unless classification decisions are utterly arbitrary or were clearly wrong with regard to every document that Trump retained, that seems like a pretty reckless way to handle sensitive material. But it would be of a piece with Trump’s behavior as president, which reportedly included tearing up and flushing documents that were supposed to be preserved under the Presidential Records Act.
The issues that critics like Rangappa raise go beyond the question of criminal liability. Let’s say Trump’s purported “standing order” means he is in the clear under 18 USC 793. Let’s also stipulate that meeting the mens rea requirements for convicting him of obstruction or “willfully” concealing documents that belonged in the National Archives would be a tall order. Trump’s behavior and excuses for it nevertheless provide further evidence, in case any was needed, that he is not the sort of person who can be trusted to hold any position of political power, let alone the presidency.
Back in 2016, when Trump was intent on making his opponent look bad, he claimed to be moved by the concerns of “long-term workers at the FBI,” who he said were “furious” that Clinton got off with a wrist slap for recklessly endangering national security. Now that the shoe is on the other foot, Trump dismisses the FBI’s avowed concerns as transparent excuses for the partisan “witch hunt” that supposedly has victimized him throughout his political career. One need not be a fan of the FBI to see that Trump’s view of what qualifies as shameful and disgraceful is based on no principle beyond his petty personal interests.”
“Clinton has her faults, but her strengths would have been on display here: a deep understanding of the federal government, a belief that it is the president’s job to solve national problems, an unparalleled enthusiasm for convening experts and synthesizing their knowledge into policy, an unusual enthusiasm for the details of interagency collaboration, a relentless focus on operational details.
President Clinton would be able to tell you where every vaccine in development stood, how fast tests were coming back in all 384 metropolitan areas, what PPE stocks looked like in every midsize city in the country. We would not be free of the coronavirus, but unlike under this administration, we would have a plan, and competent people running it, and we would’ve had it in place for months and months by now.
But that is not the world we live in. In this world, the unqualified reality TV star who won 3 million fewer votes captured the White House and botched the pandemic. And Clinton, wearing suffragist white, was relegated to a few scant minutes on the penultimate hour of the penultimate night of the convention.”
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“Like Clinton, Biden is a veteran politician, with a long record dotted with bad votes and taped gaffes. Clinton was often criticized for offering too many policies and too little boldness or thematic vision. Biden is also running on a laundry list of policies, but he’s far more detached from the substance of his agenda, and tends to speak in gauzy generalities. Clinton was criticized as too cautious a figure, too much a creature of the establishment, to win in a country that prefers inspiring outsiders. But Biden has been in politics longer, and tacked more carefully toward the Democratic Party’s shifting center over the course of his career.
Moreover, Biden lacks some of Clinton’s virtues: her policy sharpness, her attention to detail, her polymathic hunger for information, her obvious delight in the details of governance. The difference between them was on display in April when she endorsed him. There’s nothing wrong with Biden’s performance, but Clinton is by far the more knowledgeable and precise in her discussion of Covid-19.”
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“What he has that she didn’t is fuzzier: a reputation for likability, for relatability. Clinton was beloved by her staff, by those who met her or worked with her, but the person they described was rarely the person the public saw. Biden’s warmth shines through on the trail. There’s no “you’re likable enough” burns in his background.”
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“More Americans voted for Clinton than voted for Trump, but it wasn’t enough. And as Biden’s rise — and historic lead — suggests, what held others back wasn’t just a dislike of veteran politicians, or a desire for a democratic socialist, or a yearning for an outsider. Clinton is not perfect, but neither was the man she lost to in 2016, nor the man she made the case for Wednesday night. America was taught to see her flaws, but not her strengths. That’s not been a problem for the men she’s run against.
“I think there’s a lot of sexism in the way they went after Hillary,” Biden said in January. “I think it was unfair. An awful lot of it. Well, that’s not gonna happen with me.”
He was right.”