How are deleted Hillary Clinton emails different from documents kept by Trump?

HUNT VALLEY, Md. (TND) — “Hillary wasn’t indicted. She should have been.”

That’s one of the main defenses former President Donald Trump and several of his allies are offering regarding his indictment on 37 felony counts for his alleged mishandling of classified documents after he left the White House.

They’re saying there’s a double standard at the Department of Justice and FBI, because former Secretary of State Hillary Clinton was never indicted over classified information found on her private email server.

Here are the key differences between these two cases, so you can decide for yourself if you think Clinton, Trump, both or neither should have been indicted.

Clinton email scandal

Here’s a refresher on the Clinton email scandal from 2015.

Clinton relied on a private email system “for convenience” during her tenure as former President Barack Obama’s top diplomat, but intelligence agencies’ internal watchdog found more than a hundred emails on that server included classified information.

That meant the information potentially wasn’t protected from hackers or cyberattacks, though Clinton and her campaign maintained the server had some cyber protection software, but didn’t specify what kind.

Lawyers for Clinton reviewed some 60,000 emails and turned over 30,000 to the FBI, deeming the other half personal and unrelated to her work.

Trump seized on the deleted emails when he was campaigning for president, saying, “Russia: if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.”

But, it’s standard practice for lawyers to determine which records are pertinent to a subpoena and which are personal, and Clinton’s lawyers said these extra 30,000 had to do with scheduling, with topics like her daughter’s wedding, “yoga routines” and beauty appointments.

Trump’s lawyers sorted through his documents and returned what they thought was pertinent as well.

Back to Clinton’s emails, of the 30,000 turned over, the FBI found 110 of the emails had classified information in them, including some at the top-secret level related to the 2012 attack on the U.S. consulate in Benghazi.

The FBI launched a yearlong inquiry into Clinton’s emails with classified information, finding Clinton didn’t intend to break the law – that none of the emails she received were marked to inform her of the classified information, and she still worded her emails to “talk around” classified information.

Prosecutors and the inspector general concluded, “There was no evidence that the senders or former Secretary Clinton believed or were aware at the time that the emails contained classified information.”

The bureau even reopened the inquiry 11 days before the 2016 presidential election after finding a new batch of emails. But after reviewing them, the FBI opted against recommending charges.

A former Clinton spokesman and current adviser, Nick Merrill, recently told the New York Times, “We’re seven years past what was widely viewed as, at worst, a stupid mistake.”

Trump’s alleged mishandling of documents

Now, we’ll get into the accusations Trump was just indicted on Tuesday.

The indictment filed by DOJ Special Counsel Jack Smith claims when Trump left the White House after his term ended in January 2021, he took hundreds of classified documents with him to his Mar-a-Lago estate in Florida, storing them in places including a ballroom and bathroom.

In May 2021, the National Archives asked for those records back. Eight months later, Trump aides returned only some, not all, of the documents to the government, but many had classified information included.

This resulted in another subpoena for all of the documents Trump had. According to the indictment, Trump told his aides to “hide or destroy” the documents while publicly saying he complied with the subpoena.

Shortly after, the FBI searched Mar-a-Lago, and found 11 more sets of documents on the property.

These documents allegedly detailed sensitive U.S. defense information, including potential vulnerabilities in our military, our plans to respond to a foreign attack and our nuclear capabilities.

Trump is accused of showing these documents to multiple people, including people without security clearance, including a book author.

A key part of the indictment is an alleged recording of a conversation Trump had with the book author in July 2021 while he was showing him a document describing a “plan of attack” against another country.

According to the indictment, Trump allegedly said, “See, as president, I could have declassified. Now, I can’t. Secret. This is secret information. Look, look at this.”

The former president’s defense thus far has been that he had the power to declassify any documents he wanted because declassification comes under the sole power of the president, according to a judge’s decision that states such power under the Presidential Records Act.

The indictment, however, does not once mention the Presidential Records Act; rather, it mentions the Espionage Act.

Trump pleaded not guilty to all 37 felony counts against him, most of which fall under an Espionage Act statute on the willful retention of national defense information. Other charges include conspiracy to obstruct justice and making false statements.

It’s about intent

Overall, the difference between Clinton’s private email server and Trump’s classified documents is intent.

While top-ranking FBI officials slammed Clinton’s email scandal as “extremely careless” and “a mistake,” they found no proof she meant to break any laws. A main focus of the investigation was whether or not she was allowed to have the private email server in the first place as secretary, and the law is gray and has been changed multiple times since she left office.

It’s a far cry from the allegations against Trump. Prosecutors say he knew he shouldn’t have had the documents, kept them anyway and tried to keep the government from getting them back, which they say could show disloyalty to the country and its national defense secrets.

In other words, the focus on the case is no longer whether the documents were classified or somehow declassified under the Presidential Records Act. If Trump had turned them all over right away when the National Archives asked for them, he wouldn’t be in this position.

The case is about what he is accused of doing after being asked to return the documents, and what evidence prosecutors say they have that allegedly shows Trump betrayed the U.S. military by sharing its secrets with people who didn’t have the proper security clearance.

What about other classified documents found?

And if you’re wondering about the “small number” of classified documents found at President Joe Biden’s home in Wilmington, Delaware and his old office as vice president, we don’t know much about that yet.

Another special counsel is investigating those documents, but there have been zero charges brought against Biden and no evidence brought forward yet that the president tried to keep them from the FBI or move them around. Biden said he had no idea they were there, and is complying with the probe.

The same goes for former Vice President Mike Pence and the classified documents found at his Indiana home. No charges are being brought against him after the DOJ investigated and found no criminal wrongdoing.