Classified docs: How Trump case differs from Clinton, Biden

As former President Donald Trump was arraigned today on federal charges related to the retention of classified documents, one of his primary defenses has been that he is a target of unfair selective prosecution. He and his supporters say that Hillary Clinton, as well as President Joe Biden and former Vice President Mike Pence, also mishandled secret government information.

Why, they ask, weren’t any of the others prosecuted for such actions? Why has Mr. Trump been singled out?

“Most Republicans believe we live in a country where Hillary Clinton did similar things and nothing happened to her,” said GOP Sen. Lindsey Graham of South Carolina in a broadcast interview Sunday.

The cases might seem alike on the surface. But legal experts say they differ in crucial ways.

Mrs. Clinton accessed government emails, some of which contained classified references, on a private server while she was secretary of state during the Obama administration. Mr. Trump kept boxes of actual classified documents, stamped with their secrecy level and warnings against dissemination, in unsecured locations at his home in Florida after he left the White House.

President Biden and Mr. Pence also were found to have had classified materials at their homes or offices. But Mr. Trump’s behavior was allegedly much different than theirs.

Mr. Biden and Mr. Pence appear to have searched for classified materials, alerted the government when they found them, and then handed them over.

By contrast, after the government learned of the missing documents in his possession, instead of cooperating, Mr. Trump actively conspired to hide his trove of secrets, according to the Department of Justice indictment unveiled last Friday.

He moved boxes out of a storage room, misled his own lawyers about document locations, hinted that his attorneys should hide or destroy items under subpoena, and flashed classified information in front of guests with no security clearance, according to the Justice Department.

“Trump hid them from the government and lied about it. I don’t know how much ... clearer the difference can be,” says Peter Zeidenberg, a former federal prosecutor who worked in the Public Integrity section of the Department of Justice. 

Mr. Trump appeared Tuesday afternoon at a federal courthouse in Miami, where he pleaded not guilty to all 37 counts. Afterward, he was expected to go to his golf club in Bedminster, New Jersey, where he planned to deliver scheduled remarks and hold a fundraiser.

Hillary Clinton’s emails

In 2015 the intelligence community’s internal watchdog alerted the FBI to the fact that Mrs. Clinton, when serving as secretary of state, had used a private email server for government business. That meant potentially hundreds of emails containing classified information were present on Secretary Clinton’s unsecured personal network. 

Eventually, Clinton aides turned over some 30,000 work-related emails to federal investigators. They deleted another 30,000 deemed to be personal.

Intelligence agencies determined that 110 of the provided emails, in 52 chains, contained information that was classified at the time the emails were sent or received. Eight of those chains contained information at the Top Secret level, then-FBI Director James Comey said in July 2016.

Mr. Comey rebuked Mrs. Clinton as “extremely careless” in her handling of classified data. But in the end, he recommended no criminal charges be brought in the case. There was no evidence she had willfully mishandled or intentionally disseminated secrets, Mr. Comey said, and “our judgment is no reasonable prosecutor would bring such a case.”

The Trump indictment

According to the indictment prepared by special counsel Jack Smith, when former President Trump left office in January 2021, he brought with him to Mar-a-Lago hundreds of classified documents.

He then had them moved about his Florida estate, from a bathroom, to a ballroom, and then a basement storage room. Some were brought to his office and bedroom. The indictment alleges that in two instances he showed them to uncleared witnesses, while admitting to them that he should not do that, and warning his guests to not get too close.

The indictment alleges that Mr. Trump knew about the classified information in his possession, and engaged in an elaborate shell game of box-moving to hide some files from government officials and his own attorney, instead of returning all of them when asked. The FBI eventually obtained a court-sanctioned subpoena to search Mar-a-Lago and found additional classified materials.

Prosecutors have charged Mr. Trump with 37 counts on seven different criminal charges. The key word in the indictment might be “willful.” Mr. Smith is in effect charging the former president with intentionally retaining government secrets, intentionally hiding what he had in his possession from investigators, and disseminating the information even though he knew that was legally problematic.

Former Trump Attorney General Bill Barr said Sunday on Fox News that the indictment is “very damning” if “even half of it is true.”

Biden and Pence cases

Not every case in which someone mishandles classified documents – and not even every case where someone knowingly takes them home – gets prosecuted, says James P. Gillis, a former federal prosecutor who now teaches at George Mason University.

The prosecutor deciding whether to go forward with charges “tries to balance what is the real federal interest in the case against what is ... just a technical or unintentional violation of the statute,” Mr. Gillis says.

The Justice Department has already notified Mr. Pence that it will not pursue charges in his case, for instance. Aides conducting a search found about a dozen documents bearing classified markings at Mr. Pence’s home in January. Investigators discovered no evidence that the former vice president hid the classified papers from the government, or that he even knew they were there.

As for President Biden, Attorney General Merrick Garland has appointed a special counsel to investigate the discovery of classified material dating from Mr. Biden’s time as vice president at his home in Delaware and an unsecured office in Washington.

Mr. Biden was slow to provide a full public accounting of the search of his domiciles for classified information. Some documents were found in his Wilmington, Delaware, garage, next to his Corvette.

But as yet there is no public evidence that Mr. Biden’s retention of documents was intentional or purposely concealed, and he appears to have returned all the materials upon discovery.

That remains the key difference in the Trump case. It is not just that the former president took or possessed secret documents after leaving the White House, say some experts; it was his actions after the discovery. Had he taken the advice of many of his lawyers and simply turned over all classified materials, it is possible, even likely, that the special counsel would have declined to indict him.

“He was given a get out of jail free card if he had just returned the docs,” tweeted Matt Glassman, a Georgetown Government Affairs Institute senior fellow, last weekend. “No normal citizen gets that kind of ‘oops’ but it makes sense for former high ranking officials, who may often have stray docs lying around.”

Editor’s note: A former version of this story misidentified James P. Gillis as teaching at George Mason University’s Antonin Scalia School of Law. He teaches at George Mason’s College of Humanities and Social Sciences.