As former US President Donald Trump prepares for a crucial court appearance Tuesday on charges related to his hoarding of top-secret documents, his Republican allies are stepping up, without evidence, claims that he is the target of political persecution.
To make their case, Trump supporters cite the Justice Department's 2016 decision not to bring charges against Hillary Clinton—a former secretary of state and her Democratic opponent in that year's presidential race—for her handling of classified information. His supporters also invoke a separate investigation of classified documents involving President Joe Biden to claim that a justice system of double standards punishes Trump—the undisputed favorite for the Republican Party's 2024 White House nomination—for conduct in which Democrats have been involved.
“Is there a different standard for a Democratic secretary of state and a former Republican president?” said Florida Gov. Ron DeSantis, one of Trump's main rivals. "I think there should be a standard of justice in this country."
But those arguments overlook many factual and legal differences—primarily related to intent, mood, and deliberate acts of obstruction—that limit the value of such comparisons.
A look at the Clinton, Biden and Trump investigations, and what separates them:
WHAT DID CLINTON DO?
For convenience, Clinton relied on a private email system during her time as the top diplomat in the Obama administration. That decision haunted her when, in 2015, the internal watchdog for intelligence agencies alerted the FBI to the presence of potentially hundreds of emails containing classified information.
FBI investigators ultimately concluded that Clinton sent and received emails containing secret information in that unclassified system, including information at the top-secret level.
Of the roughly 30,000 emails released by Clinton's representatives, the FBI said, 110 emails in 52 email chains were found to contain classified information, including some top-secret information.
After an investigation of approximately a year, the FBI closed the investigation in July 2016, concluding that Clinton did not intend to break the law. The FBI reopened the investigation months later, 11 days before the presidential election, after discovering a new batch of emails. After reviewing those communications, the FBI again chose not to recommend charges.
WHAT IS TRUMP ACCUSED OF?
The indictment filed by Justice Department special counsel Jack Smith alleges that when Trump left the White House after his term ended in January 2021, he took hundreds of classified documents to Mar-a-Lago, his mansion in Florida—and then repeatedly blocked attempts by the government he once oversaw to recover those records.
The material Trump withheld, prosecutors say, related to America's nuclear programs, the defense and weapons capabilities of the United States and other countries, and potential vulnerabilities to attack — information that, if exposed, could put in jeopardy. risk the security of military and human sources.
Beyond simply hoarding documents — in places that included a bathroom, a ballroom, a shower and his bedroom — the Justice Department says Trump showed highly confidential material to visitors without security clearance, and obstructed the FBI by among other things, ordering a personal assistant—who was indicted along with him—to move boxes from one location to another in Mar-a-Lago to hide them from investigators.
Although Trump and his allies have claimed that he could do whatever he wanted with the documents under the Presidential Records Act, the indictment ignores that argument and makes no reference to that statute once.
In total, the indictment against Trump includes 37 felony counts, most under an Espionage Act related to the willful withholding of national defense information.
WHAT SEPARATES THE CASES OF CLINTON AND TRUMP?
A lot, but there are two important differences in intent and obstruction.
In an otherwise harshly critical assessment condemning Clinton's email practices as "grossly careless," then-FBI Director James Comey announced that investigators had found no clear evidence that Clinton or her aides had any the intent to violate the laws governing classified information.
As a result, he said, "no reasonable prosecutor" would pursue a case. All of the relevant Espionage Act cases filed over the past century by the Justice Department, Comey said, involve factors that included efforts to obstruct justice, the deliberate mishandling of classified documents and the disclosure of large amounts of records. None of those factors existed in the Clinton probe, she explained.
That is in stark contrast to the allegations against Trump, who prosecutors say was involved in packing the boxes that were going to Mar-a-Lago, and then took active steps to hide the classified documents from investigators.
The indictment accuses him, for example, of suggesting that a lawyer hide documents required by a Justice Department subpoena or falsely stating that all requested records had been provided, even though more than 100 were missing.
The indictment quotes Trump's own words against him several times to show that he understood what he was doing and what the law allowed him and did not allow him to do. He describes a July 2021 meeting at his golf club in Bedminster, New Jersey, in which he showed a Pentagon "attack plan" to people without security clearances to view the material, and proclaimed that "as president, I could have declassified it." ”.
"I can't now, you know, but this is still a secret," the indictment quotes him.
That conversation, captured on audio recording, is likely powerful evidence insofar as it undermines Trump's repeated claims that he had declassified the documents he took with him to Mar-a-Lago.
WHERE DOES BIDEN FIT?
The White House revealed in January that two months earlier, a lawyer for Biden had located what he said were a "small number" of classified documents from his time as vice president during a search of the offices of the Penn Biden Center, the former investigation of the president in Washington. The documents were turned over to the Justice Department.
Biden's lawyers later located an additional batch of classified documents at Biden's home in Wilmington, Delaware, with the FBI finding even more during a voluntary search of the property.
The revelations were a humiliating setback for Biden's efforts to draw a stark contrast between his handling of confidential information and that of Trump. Still, as with Clinton, there are significant differences in the cases.
Although Attorney General Merrick Garland appointed a second special prosecutor to investigate the Biden documents in January, no charges have been filed, and at least so far, no evidence has emerged to suggest anyone intentionally moved classified documents or tried to prevent them from being released. the FBI will retrieve them.
While the FBI obtained a search warrant last August to recover additional classified documents, each of the searches in the Biden case were conducted voluntarily with the consent of his team.
Meanwhile, the Justice Department notified Trump's Vice President Mike Pence earlier this month that he would not file charges following the discovery of classified documents at his Indiana home. That case also did not involve charges of willful withholding or obstruction.
