McCarthy - Two Tiered Justice
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Donald Trump and Hillary Clinton Received Unequal Justice
Even in the barely remembered details, Donald Trump’s Mar-a-Lago documents scandal is reminiscent of Hillary Clinton’s email scandal, though Hillary’s was worse.
Not worse in the gravity of the misconduct. On that, reasonable minds can disagree. Is it more egregious, for example, to communicate with the president about sensitive matters over a nonsecure private email system while in a hostile country (i.e., Russia, with its highly competent intelligence services), as the FBI found then–secretary of state Clinton to have done, or to retain in a Palm Beach resort club some top-secret analyses of our nation’s military vulnerabilities, along with contingency plans to attack hostile regimes, as the indictment of former president Trump alleges he did?
By “worse,” I refer instead to how the government investigated these scandals, developing what’s alternatively been referred to as the “Clinton precedent” or the “Comey precedent.” The latter refers to former FBI director James Comey, the mouthpiece for the decision not to prosecute Clinton. Ultimately, the decision was made by President Barack Obama, whose publicly stated April 2016 rationale for why Clinton should not be indicted was later dutifully echoed in Comey’s now-infamous press conference. It was then endorsed by Obama’s attorney general, Loretta Lynch, fresh off her now-infamous airport-tarmac meeting with Secretary Clinton’s husband (a former president who had raised Lynch to national prominence with a coveted U.S.-attorney appointment).
With Democrats having established the precedent to give Clinton a pass, they ignored it in charging Trump. But they are simultaneously poised to invoke it for the benefit of the incumbent Democratic president. The unabashed partisanship is what critics furiously lambaste as “two-tiered justice.”
As described by Comey in his paradoxically withering exoneration of Clinton (he scolded her recklessness before absurdly opining that “no reasonable prosecutor” would charge her), the emails scandal consisted almost entirely of Clinton’s mishandling of classified information. But her misconduct went well beyond that. Her malfeasance involved unlawfully retaining and destroying tens of thousands of nonclassified government files. Not just deleting them, destroying them.
A Clinton contractor treated over 30,000 emails (according to Clinton herself), a good chunk of them involving the official business of the Obama State Department, with a program called BleachBit to ensure that they could never be retrieved. This artifice was not completely successful; the FBI’s forensic wizards were able to reassemble enough of the fragments to detect several thousand government files, some of them classified. Clinton and her confederates had more luck with communication devices that the bureau’s half-hearted investigation never accounted for, some of which were smashed to bits by hammers.
When the press covered Clinton’s woes, and when Comey addressed them, the spotlight was on classified information, to the near-exclusion of the rest. This was a shrewd stratagem, on two counts.
First, Clinton’s destruction of digital files, like her establishing of a “home-brew” server system to insulate her communications from government record-keeping, was a willful act. Ignoring it enabled Comey to portray Clinton as a bumpkin, though she was actually a sophisticated consumer of classified information, having served on the Senate Armed Services Committee for years and been a very involved two-term first lady before that. Clinton helped cultivate this false impression of her cluelessness by implausibly maintaining — in her perfunctory FBI interview before the investigation was dropped — that she hadn’t known that the “C” designation in government documents denoted “confidential” intelligence (the most common classification level). Thanks to this minimization of Clinton’s criminal intent, her classified-information offenses were analyzed exclusively under an Espionage Act subsection that criminalized gross negligence in mishandling national-defense information rather than willful retention of such information — the offense that Trump is charged with.
Even on the matter of gross negligence, the fix was in: Obama and Comey further excused Clinton’s recklessness on the irrelevant ground that she hadn’t intended to harm national security. Statutorily, no such mens rea need be proven to establish the offenses of mishandling classified information either willfully or by gross negligence. The crime is premised not on malevolence against our country but on the violation of trust by officials whose privileged access to secret intelligence is conditioned on their promise to follow the rules of safekeeping.
Second, embezzling and destroying government records, classified or not, is a serious crime: even a single government record, to say nothing of thousands of them. Nevertheless, Clinton’s theft of government property was obscured because of the single-minded focus on whether she had violated the Espionage Act. The Obama administration and its cheerleaders rationalized that as long as Madame Secretary had not committed treason — which no one had claimed — the thousands of government records Clinton obliterated were too trivial to tarry over. “Mistakes were made,” okay?
Apparently not when it comes to Trump. True, most of the attention has been directed at the former president’s indefensible hoarding, allegedly, of over 300 intelligence documents, many of them classified at the highest levels. What actually triggered the Mar-a-Lago investigation, however, was not secret intelligence. It was boxes upon boxes of banal presidential records, accumulated over four years by a notorious pack rat — a New York real-estate tycoon and media celebrity whose homes and offices have always been festooned with mementos he proudly shows off to guests.
As ever, hubris has led to disaster. Very shortly after Trump’s chaotic decamp from the White House in the wake of the Capitol riot, bureaucrats from the National Archives and Records Administration (NARA) noted that the former president and his staff had shipped to Mar-a-Lago numerous boxes of presidential materials. These had not been archived as mandated by the Presidential Records Act (PRA).
Trump has untenably claimed that the PRA made these materials his. To the contrary, the PRA establishes a process by which the White House and NARA work together to determine which materials are presidential records that must be archived and which are personal records that the president may keep. The president is expected to act within the parameters of the PRA, under which almost everything except private journals or diaries is supposed to be archived as a presidential record. What’s more, the PRA presumes that the White House will categorize materials at the time they are first created or collected. If NARA is uncomfortable with a presidential designation of an item as “personal,” the PRA provides for consultation with Congress. And the president must make such designations during his presidency — once a presidency is over, the PRA makes NARA, not former presidents, the fiduciary responsible for the materials that the presidency generated.
The PRA was enacted in 1978, post-Watergate, with the Nixon tapes in mind. The statute’s weakness is that it lacks enforcement provisions. Congress assumed the good faith of presidents in their dealings with NARA. Consequently, NARA lacked much leverage as it badgered Trump for nearly a year to return the thousands of government documents he’d taken. Finally, in early 2022, Trump surrendered 15 boxes containing just a fraction of the records he was retaining at Mar-a-Lago — and only because NARA had threatened to report his intransigence to the House Oversight Committee, then run by Democrats.
Prosecutors got involved only because NARA, in examining the 15 boxes, discovered nearly 200 documents bearing classification markings (and thus presumably classified, despite Trump’s later unsupported claims to have declassified them). The Biden Justice Department and the FBI would aggressively pursue Trump’s retention of these and additional such documents — a very different tack from that taken by the Obama Justice Department and the Comey FBI. But what of the thousands of nonclassified presidential records Trump was refusing to surrender? That obstinacy, though condemnable, was not the same as torching them, which he’d have had to do to match Clinton’s BleachBit demolition.
The State Department never made a peep about the thousands of its records that Clinton destroyed, and Justice was, of course, blind. In Trump’s case, however, NARA schemed with DOJ prosecutors and the FBI to criminalize the PRA, notwithstanding Congress’s considered decision not to include even civil enforcement measures, much less criminal ones. When the Justice Department sought a search warrant for Mar-a-Lago in August 2022, in addition to alleging crimes involving national-defense intelligence and obstruction, it quietly included an allegation that Trump had violated an obscure penal-law provision (Section 2071) that makes it a crime, punishable by three years’ imprisonment, to remove or conceal government records.
Biden special counsel Jack Smith did not include that crime in his recent indictment of Trump. In resorting to Section 2071, prosecutors had not been preparing to charge Trump; instead, they used it to expand the scope of their search warrant to cover not just classified files but all government files, of which more than 11,000 were seized. This enabled the Biden administration to get back NARA’s files; the Obama administration had never used such a tactic to get back the State Department files from Hillary Clinton’s tenure there. Basically, a Democratic-controlled Justice Department had rewritten the PRA to punish Trump, whereas the last Democratic-controlled Justice Department had effectively rewritten the Espionage Act to absolve Clinton.
It is an eight-year pattern. It’s not just that Clinton was not prosecuted. By the time the Obama Justice Department had finished giving immunity to Clinton’s confederates and cutting deals with Clinton’s lawyers, the case was sabotaged. The Trump Justice Department couldn’t have prosecuted Clinton even if it had wanted to. In stark contrast, the earth was scorched to get Trump, with search warrants and subpoenas used boldly. Clinton’s lawyers dictated to the Democratic-run DOJ, placing hard limits on what questions could be asked of the lawyers who abetted her, limiting the FBI’s perusal of those lawyers’ communications devices, and — in shocking violation of rudimentary investigative protocols — permitting those lawyers to sit in with Clinton and assist her during questioning by the bureau. Today’s Democratic-run DOJ, by contrast, threw Trump’s lawyers into the grand jury after convincing a friendly judge not just to strip away the former president’s attorney–client privilege but also to require a key lawyer to hand over extensive notes of his conversations with Trump to prosecutors. These notes and the testimony of Trump’s lawyers form the backbone of the Mar-a-Lago indictment’s felony obstruction charges against the former president.
That is what most angers many Republicans. The problem with two-tiered justice is not that it prosecutes the guilty. It is that guilty Democrats are insulated from prosecution while the book is thrown at Republicans.
If the Biden administration cared to live up to the president’s promises to unite the country, it could correct this course. Even as Trump has been placed in criminal jeopardy over his document retention, Biden has his own documents-retention problem, stretching back decades to his time in the Senate. We’ve heard precious little about that probe, which is being handled by another special counsel, Robert Hur.It would be an act of statesmanship were Biden to offer Trump a pardon in view of the Biden Justice Department’s inevitable burying of the Biden Espionage Act probe. Like Trump and Clinton before him, Biden is under investigation for mishandling national-defense information — unlawfully retaining classified documents for decades, going back to his years in the Senate. If the Trump and Biden document dramas were concurrently dismissed, we might then call things even (though, after Clinton, they really wouldn’t be). Henceforth, we could commit to evenhanded, appropriate enforcement of national-security law — maybe even, for a change, have a presidential election free of law-enforcement intrusion.
Instead of statesmanship, what we can expect is more two-tiered justice.
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What actually triggered the Mar-a-Lago investigation, however, was not secret intelligence. It was boxes upon boxes of banal presidential records, accumulated over four years by a notorious pack rat — a New York real-estate tycoon and media celebrity whose homes and offices have always been festooned with mementos he proudly shows off to guests.
No, Andy, what triggered the investigation was a tip that the government received that Trump was lying about having returned all the documents, which they then confirmed via security camera footage.
It’s notable that Smith didn’t charge Trump for taking the documents to Mar-Al-Lago. All of the felony charges begin with the lying and obstruction.
