“When caught, Hillary [Clinton] then deleted and acid washed … 33,000 emails in defiance of a congressional subpoena already launched,” ex-President Donald Trump lamented on the evening after his federal arraignment on 37 counts of willful retention of national defense information, obstruction of justice, and false statements. “There’s never been obstruction as grave as that. . . . Hillary Clinton broke the law and she didn’t get indicted.”
“Is there a different standard for a Democratic secretary of state versus a former Republican president?” asked Florida governor and Republican presidential hopeful Ron DeSantis shortly after news of Trump’s classified-documents indictment broke. “I think there needs to be one standard of justice in this country.”
Many Republicans who know in their guts that, as I will establish in this piece, Trump’s conduct is palpably different from Clinton’s are publicly encouraging the corrosive myth that a double standard has been applied in the indictment of one and the non-prosecution of the other. Here’s Sen. Lindsey Graham doing just that on ABC’s This Week earlier this month: “Most Republicans believe we live in a country where Hillary Clinton did very similar things and nothing happened to her.” Note that Graham didn’t say that he believed we live in that world. Yet he managed to leave the impression that he was sympathetic to that view and that Republicans who held it were justified in doing so.
Even Fox News chief political analyst Brit Hume, while voicing concerns about Trump’s conduct, did a version of the “many-Republicans-believe” dodge recently:
At the same time, of course, . . . we’re going to hear an awful lot about the unequal application of justice from [Trump’s] defenders and perhaps from his defense team in light of the way in particularly the Hillary Clinton case was handled, where she was, where James Comey, then FBI director, had conducted an investigation of her handling of material at her home in New York and outlined a case that he said could be brought but shouldn’t be. He didn’t dispute her guilt.
For the record, Comey did dispute Clinton’s guilt. His view was that “no reasonable prosecutor would bring such a case” because her state of mind, which he described as “extremely careless,” didn’t make out a crime.
Importantly, the crux of Clinton’s case, unlike Trump’s, was about gradations of carelessness, recklessness, and gross negligence—states of mind that can constitute felonies only in rare situations, like manslaughter. This fact alone already makes Clinton’s case qualitatively different from Trump’s. None of the seven crimes that a Florida grand jury found Trump to have committed hinges on proving a defendant’s “extreme carelessness.” Trump is accused of acting “with intent,” “knowingly,” “willfully,” and “corruptly,” and of doing so over a period of 18 months. The indictment alleges that he told bald-faced lies to at least two of his own lawyers—Evan Corcoran and Christina Bobb in June 2022—in an effort to persist in, and cover-up, his 31 other intentional crimes. It alleges that he repeatedly urged one of those lawyers, Corcoran, to conceal or destroy documents on his behalf, in both May and June of 2022. It alleges that Trump enlisted multiple employees into his obstructive conduct, at least one of whom became an active co-conspirator. Though indictments never set forth all the evidence the government intends to use to prove them, this one does foreshadow the evidence that supports it; at a minimum, that includes the testimony of multiple eyewitnesses, text messages, photographs, video surveillance footage, and an audio recording.
In contrast, let’s review the evidence of Hillary Clinton’s conduct. While that evidence is by no means flattering, it is not just different from Trump’s, it is radically different. Different to the point that the insistence on their similarity is not a matter of reasonable interpretation. It is, rather, a kind of lie—a lie either to make Clinton’s conduct look worse than it was, to make Trump’s look more benign than it was, or both at the same time.
From July 2015 to July 2016, a team of FBI investigators and federal prosecutors conducted a probe, code-named Midyear Exam, into Hillary Clinton’s use of a private email server during her years as secretary of state. The Midyear probe was later scrutinized by a maniacally meticulous meta-probe conducted by the Department of Justice’s Inspector General’s Office, which produced a 568-page report in June 2018.
Although the Midyear team looked at four federal criminal statutes, it quickly concluded that only one of them conceivably reached Clinton’s conduct. That was 18 U.S.C. §793(f)(1), whose language purports to make it a felony for someone, “through gross negligence,” to permit national security information “to be removed from its proper place of custody.”
After reviewing past military and civilian prosecutions under § 793(f)(1), however; past declinations of prosecution under it; and the legislative history of that provision, which was originally enacted in 1917, the Midyear team concluded that the term “gross negligence,” as used in Section 793(f)(1), required conduct “so gross as to almost suggest deliberate intention,” criminally reckless, or “something that falls just a little short of being willful.” For reasons laid out below, the Midyear investigators found that Clinton’s “extreme carelessness” did not meet that standard. In fact, they concluded that an attempt to prosecute her might well lead to a court’s striking down that provision of law as unconstitutional.
Some readers will interject at this point: What about the 30,000 emails Trump says Clinton destroyed? What about the acid baths and the smashed computers? Why wasn’t that obstruction of justice?
We will look at that allegation, too. At this stage, suffice it to say that the true facts surrounding Clinton’s emails did not spur the investigators or lawyers at either the FBI or the Justice Department or the US Attorney’s office in the Eastern District of Virginia or the inspector general’s office to believe that any of the six obstruction or false statement charges now leveled against Trump—or any other obstruction charges anywhere on the books—were even remotely implicated.
In 2018, the inspector general concluded that the Midyear team’s decision not to prosecute Clinton was plausible, reasonable, and unremarkable. “We found no evidence that the conclusions by Department prosecutors were affected by bias or other improper considerations,” the report says. “[R]ather, we concluded that they were based on the prosecutors’ assessment of the facts, the law, and past Department practice.”
Because the investigation of Hillary Clinton’s emails occurred seven to eight years ago, many readers may not remember what actually happened. In light of the ubiquitous claims of a “double standard” now being bandied about, let’s go through the actual facts found by the investigation. The exercise reveals that there are at least 703 powerful reasons that Trump’s case is both more worthy of prosecution and more prosecutable—i.e., provable—than Clinton’s.
Except where otherwise indicated, the factual account below is drawn from the findings of the June 2018 inspector general’s report.
On Jan. 21, 2009, Hillary Clinton became secretary of state. When she did, she continued using a private email server that she and her husband, ex-President Bill Clinton, had been using since 2008. That server was located in their home in Chappaqua, New York. In January 2009, Hillary directed aides to create for her a “clintonemail.com” account on that server “as a matter of convenience,” she later told the FBI. Although some have retrospectively suggested that she set up the account to circumvent Freedom of Information Act inquiries, there has never been any evidence that she set up a private email server with an eye toward later mishandling classified information.
Clinton used the clintonemail.com domain for both personal and official emails. She also used a personal mobile device for official and personal emails “to avoid carrying multiple devices,” she later told the FBI.
Clinton and her husband upgraded server equipment shortly after she took office, in March 2009. About four years later, on Feb. 1, 2013, she stepped down as secretary of state. Soon thereafter, she and her husband upgraded the server again. That third server was maintained by a Colorado-based company called Platte River Networks, which kept the server at offices in New Jersey. The server was maintained by a Platte River employee named Paul Combetta.
In May 2014, more than a year after Clinton left office, the U.S. House Select Committee on Benghazi was formed to investigate the terrorist attack on the U.S. Temporary Mission Facility in Libya in September 2012. The committee requested certain documents from the State Department.
Sometime that summer, the department realized that it could not locate Clinton’s emails. It reached out to attorney Cheryl Mills, who had been Clinton’s chief of staff and counselor during her State Department years. Mills told the department about the “clintonemail.com” addresses. Department officials then instructed Mills to produce Clinton’s emails from those accounts. The officials also told her, Mills later told the FBI, that it was Clinton’s or Mill’s “obligation to filter out personal emails from what was provided to State.” (Emphasis added.)
Clinton then told Mills and Clinton’s personal attorney, David Kendall of Williams & Connolly, to oversee the process of providing Clinton’s work-related emails to the State Department.
The Culling and the ‘Oh Shit’ Moment
In late summer 2014, Mills contacted Platte River Networks employee Combetta, who administered Clinton’s server. Mills instructed him to copy and transfer her emails onto laptops belonging to Mills and Heather Samuelson, a lawyer who had been Clinton’s White House liaison when she was Secretary of State, so that they could cull through them, as the State Department had instructed, winnowing out the personal from the work-related emails.
The three attorneys—Mills, Samuelson, and Kendall—did not personally search through the content of Clinton’s 60,000-plus emails. Instead, they did what litigation attorneys typically do during discovery; they devised an automated search protocol that looked for certain header or footer information and for certain keywords, and sorted through them that way. Samuelson did, however, personally inspect the to, from, and subject fields of each email, she told the FBI.
In December 2014, Clinton’s attorneys turned over 30,490 emails that were deemed work-related as a result of the culling. That left 31,830 emails that were deemed personal. Mills preserved the 30,490 work-related emails on thumb drives. Then she asked Combetta to “securely delete” all of Clinton’s emails from her and Samuelson’s laptops so that they could continue to use those computers for other matters. Combetta wiped Clinton’s emails from their laptops using an off-the-shelf software product called BleachBit. At that point, all of Clinton’s emails still remained on the Clinton server in Platte River Network’s custody.
Around that time, however—sometime between November 2014 and January 2015—Clinton told her lawyers that she wanted to change the “retention policy” on her personal emails to just 60 days. Her three attorneys appear to have seen nothing illegal about Clinton’s request to make that change at that particular time. Nor, for that matter, did the Midyear FBI investigators or prosecutors who later probed into Clinton’s and the lawyers’ conduct. Nor either did the inspector general meta-investigators who, in 2018, probed the work of the Midyear probers. Remember that at this time these personal emails were not under subpoena by either congressional investigators or criminal investigators. Despite the insistence of Trump and his defenders, these were not government documents; they were actually personal records. There has never been any evidence that the lawyers characterized government records as personal records by way of evading the obligation to return government records. And there is no evidence that Clinton herself participated in the sorting of the material.
Clinton’s lawyers then instructed Combetta, the Platte River Networks employee administering the server, to implement the new retention policy—in other words, to delete all of Clinton’s personal emails older than 60 days. Apparently because of an oversight, however, Combetta failed to carry out the request when asked.
On March 2, 2015, the New York Times reported that Clinton had used a personal email account at the State Department, possibly breaking rules. The next day—about two to four months after Clinton instructed Combetta to delete emails under her new retention policy—the House Benghazi committee sent Clinton a preservation order requiring her to keep all emails on her clintonemail.com accounts. On March 4, the committee subpoenaed Clinton’s emails relating to the Benghazi incident. On March 9, Mills emailed Combetta to make sure he understood his obligation to preserve Clinton emails, pursuant to the preservation order.
On March 12, in light of the Times article, certain members of Congress asked the inspectors general for the State Department and the Intelligence Community to conduct a coordinated review of State Department employees’ email practices.
At some point in March 2015, after receiving the preservation order, Combetta experienced what he would later describe to FBI agents as an “oh shit” moment. He realized that he had never deleted Clinton’s emails, as directed months earlier under Clinton’s new retention policy. So sometime between March 25 and March 31, Combetta wiped Clinton’s emails from her private server—including the 31,830 deemed “personal” from the culling—notwithstanding the preservation order. Again, he used the software product BleachBit. (Combetta admitted this to Midyear investigators on May 3, 2016, after being given “use immunity” by prosecutors. He took sole and full responsibility for deleting the emails, saying that neither Mills nor Samuelson knew of his deletions. The Midyear investigative team—later interviewed by the inspector general’s office—recounted to the inspector general’s office that they believed Combetta’s account, that it squared with forensic evidence, and that it was consistent with the testimony of others, including Mills and Samuelson. After interviewing Midyear team members and reviewing their contemporaneous emails, the inspector general found no reason to second-guess their judgment.)
The Referral to the FBI
During the summer of 2015, the inspector general of the intelligence community, conducting its review of State Department email practices, came across four Clinton emails that, though not bearing any classification markings, were judged to contain classified information. In July, as required by law, the inspector general referred the matter to the FBI. On July 10, the FBI commenced a criminal inquiry—Midyear Exam. The team included investigators from the FBI’s headquarters; investigators from the FBI’s Washington Field Office; attorneys from the Department of Justice’s National Security Division, and prosecutors for the U.S. Attorney’s Office for the Eastern District of Virginia.
The probe ended a year later, with FBI director Comey delivering his famous press briefing on its essential findings on July 5, 2016. That same month, the FBI also provided Congress with a “letterhead memorandum” discussing the probe’s findings in greater detail.
By then, the Midyear team had recovered more of Clinton’s emails. It had been able forensically to recover some—but not all—from the wiped server and laptops. It also searched Clinton’s other devices and then obtained more emails from government and third-party email services used by her colleagues. The team issued 56 grand jury subpoenas, obtained five court orders pursuant to 18 USC § 2703(d), and executed three search warrants. In all, the investigators recovered an additional 17,488 Clinton emails besides the 30,490 she had turned over.
These additional emails were a mix of work-related and personal emails, according to the inspector general’s Report. It was impossible to tell with certainty how many of them—if any—had been among the 31,830 that Clinton’s lawyers had deemed “personal” and that Combetta had deleted. In part, that was because it would be natural for Clinton not to have kept all her State Department emails until Dec. 2014, when the culling occurred. As Director Comey explained in July 2016:
I should add here that we found no evidence that any of the additional work-related emails were intentionally deleted in an effort to conceal them. Our assessment is that, like many email users, Secretary Clinton periodically deleted emails or emails were purged from the system when devices were changed. Because she was not using a government account—or even a commercial account like Gmail—there was no archiving at all of her emails, so it is not surprising that we discovered emails that were not on Secretary Clinton’s system in 2014, when she produced the 30,000 e-mails to the State Department.
Nevertheless, Comey thought it likely that at least some of the 31,830 deleted emails were recovered through the investigation.
Upon examining the original 30,490 emails that Clinton provided in December 2014, the Midyear team found 69 email chains that, in the view of the intelligence experts, contained classified information. When the team combed through the additional 17,488 emails recovered during the probe, they found an additional 12 chains containing classified information. That made 81 chains in all, composed of 193 individual emails.
Before breaking those numbers down further, however, let’s be clear about what we’re talking about. None of these emails contained headers or footers bearing classification markings indicating to readers that they contained classified information. In other words, these emails were not marked with the warnings required under Executive Order 13526 or its predecessor which set forth proper procedures for handling classified information. Accordingly, readers of these emails, like Clinton, were not necessarily on notice of the sensitivity of the information contained within them.
And to be clear, we are also not talking about a situation in which Clinton or her staff were, for instance, attaching to their emails documents of the kind we’ve seen spilling out of Trump’s boxes, with garish warning sleeves unmistakably signposting to anyone within 15 feet that they contain classified information requiring special treatment.
During the course of their investigation, the Midyear team interviewed 72 people. These included the rank-and-file State Department officials who introduced classified information into the unmarked emails that eventually reached Clinton; 13 higher-level officials who forwarded such information to Clinton; and Clinton herself. The originators of those emails, according to the inspector general’s report, told Midyear investigators that they:
used unclassified emails because of “operational tempo,” that is, the need to get information quickly to senior State Department officials at times when the recipients lacked access to classified systems. To accomplish this, senders often refrained from using specific classified facts or terms in emails and worded emails carefully in an attempt to avoid transmitting classified information.
Of the 13 higher-level officials, three of them—Mills, deputy chief of staff Jake Sullivan, and deputy chief of staff and adviser Huma Abedin—accounted for 68 percent of the email traffic sent to Clinton. According to the inspector general’s report, these three aides told the FBI:
they did not believe the information contained in their emails was classified; they tried to talk around classified information in situations where there was an urgent need to convey information and they did not have access to classified systems; some of the information they were discussing had already appeared in news reports; and they relied on the originators of the emails to properly mark them. These explanations were consistent with those provided to the FBI by both the originators of the emails containing classified information and Clinton. Based in part on these explanations, the prosecutors determined that no one “within the scope of the investigation,” including the three senior aides, “committed any criminal offenses.”
As for Clinton herself, she told the FBI (according to the inspector general’s report) that “during her tenure she received classified information through secure briefings, secure calls, classified hard documents, and classified faxes, and she “did not recall receiving any emails she thought should not be on an unclassified system.” When confronted with each allegedly offending email, she told investigators (per the report):
that she did not believe the information contained in the email was classified or that she relied on the State Department employees who worked for her to use their judgment in determining whether information was classified and appropriate to send on unclassified systems. … Clinton’s responses to these questions were consistent with the testimony of other witnesses on the email chains, including Clinton’s senior aides who forwarded classified information to her.
One Midyear prosecutor later told the inspector general: “[T]he problem was the State Department was so screwed up in the way they treated classified information that if you wanted to prosecute Hillary Clinton, you would have had to prosecute 150 State Department people.”
Now let’s discuss the breakdown of these unmarked email chains that were deemed to contain classified information. According to the FBI letterhead memorandum, eight of the 81 chains contained top secret information. Seven of those eight chains contained information so sensitive as to merit “Special Access Program” designation, and three of the eight contained information designated as Sensitive Compartmented Information. The other 73 chains included information found to be classified at either the Secret (37 chains) or Confidential level (36 chains).
At this point, I’ll turn to an important question that the Midyear team members asked themselves. Was the most sensitive information—the Top Secret, SAP, and SCI information—found among the 30,490 emails Clinton turned over in December 2014? Or was it, rather, found among the 17,488 additional emails that the FBI could only recover forensically or through investigative means? If Clinton and her lawyers intentionally destroyed emails to hide them from investigators, one would have expected them to be found in the latter group.
Yet all of those most sensitive email chains—all of them—were found among the “work-related” emails dutifully turned over by Mills in Dec. 2014. The twelve additional chains of classified information recovered during the investigation were all classified at lower levels: Secret or Confidential.
Finally, toward the end of the probe, investigators did come across three email chains that—while not properly marked classified in headers or footers—did contain certain interior paragraphs that began with the marking “(C).” This coding means “Confidential,” the lowest level of classification.
Clinton told FBI investigators, according to the inspector general’s report, that
she did not know what the “(C)” meant and “speculated it was a reference to paragraphs ranked in alphabetical order.” … Clinton told the interviewers that she did not agree that the information contained in the email was classified, because it described information that was already in the press.
Though some investigators were highly skeptical of Clinton’s claim not to know what the marking meant, they also regarded her assertion as not disprovable. According to the report:
[Comey] stated, “By her demeanor, she was credible and open and all that kind of stuff, but—so I can’t sit here and tell you I believed her. I can only tell you, in no particular could we prove that she was being untruthful to us.” … The prosecutors stated that the “(C)” markings were somewhat ambiguous given their placement in the email chains and the fact that the classification marking “Confidential” was not spelled out anywhere in the email, let alone in a readily apparent manner. They further stated that Clinton’s statement regarding her knowledge of the “(C)” marking was not one that could be affirmatively disproved.
On top of that, the State Department never provided a determination to the Midyear investigators that the information contained in those three email chains really was, in fact, confidential at the time the emails were sent. Moreover, the department conceded that the information contained in two of the three chains was not confidential as of July 2016, when the Midyear Exam was concluding.
Comparing Clinton and Trump: Classified Markings
So let’s analyze the distinctions between the allegations against Clinton and the allegations against Trump that might fairly bear upon a prosecutorial decision about whether to bring charges. The obvious starting place is the specific reasons that the Midyear Exam team gave for declining prosecution of Clinton. According to the inspector general, the first was that, “None of the emails contained clear classification markings as required under Executive Order 13526 and its predecessor.” The team’s point was that it was going to be hard to prove that Clinton understood that her emails contained classified information.
By contrast, according to the indictment, the 15 boxes that Trump returned to the U.S. National Archives and Records Administration (NARA) in January 2022 contained 197 documents bearing unambiguous classification markings. At least 30 of those were marked TOP SECRET, and some bore SCI and SAP markings indicating extraordinary sensitivity. Another 98 documents were marked SECRET.
Also according to the indictment, Trump had been personally involved in packing the boxes that were removed from the White House to Mar-a-Lago. That makes it likely that he was aware from the start that he had removed classified information and retained it in an unsecure location. And it is sharply different from Clinton’s case, where investigators developed no evidence that Clinton played any role in sorting or producing the material in question. That’s 197 significant reasons that his situation is materially different from Clinton’s.
Then, in June 2022, according to the indictment, Trump’s attorney, Evan Corcoran, returned another 38 clearly marked classified documents to the FBI in response to a grand jury subpoena issued on May 11. Should we give Trump some credit for returning these documents voluntarily? No. The indictment makes clear that their return was not voluntary. On the contrary, it alleges (a) that Trump hid boxes from his attorney, Corcoran, before Corcoran could search through them looking for responsive documents; and (b) that once Corcoran did find these 38 documents in his search, Trump urged Corcoran in multiple ways to destroy or conceal those rather than turn them over. There is, by contrast, no evidence that Clinton ever encouraged her lawyers or anyone else to hide material from investigators. Adding these 38 documents to the first 197 makes 235 material ways in which Trump’s situation materially differs from Clinton’s.
Then, on Aug. 8, 2022, the FBI searched Mar-a-Lago. It found still another 102 unambiguously marked classified documents. Among these were 17 at the TOP SECRET level and 54 at the SECRET level. That brings us to 337 reasons why Trump’s situation is both more worthy of prosecution—and more provable—than Clinton’s.
Were Documents Used for Official Purposes?
The second factor favoring non-prosecution of Clinton, according to the Midyear team, was that her emails were always used for official purposes. According to the inspector general:
The emails in question were sent to other government officials in furtherance of the senders’ official duties. There was no evidence that the senders or former Secretary Clinton intended that classified information be sent to unauthorized recipients, or that they intentionally sought to store classified information on unauthorized systems.
The same cannot be said for the 337 documents with classification markings that Trump took to Mar-a-Lago. Every one of them was, by definition, removed for an unofficial, non-governmental purpose. Indeed, Trump has publicly emphasized this point, declaring in interviews that the documents were his personal property and that he had every right to take them. That makes 674 reasons to distinguish the two cases.
In addition, the indictment alleges at least two specific instances in which Trump brandished classified documents in nongovernmental settings. In July 2021, at his golf club in Bedminster, New Jersey, he allegedly waved around and “described” a military “plan of attack” at a recorded meeting with four other individuals, none of whom had security clearances. Then, in August or September 2021, he showed a map he described as classified to a representative of his political PAC, who also lacked a security clearance. There is no alleged similar conduct by Clinton. These intentional exposures of alleged national security information to five unauthorized individuals count as five additional reasons to treat Trump’s case as far more grave—and provably so—than Clinton’s. That’s 679 reasons.
Proof of Knowledge That Information Was Classified
A third factor that the Midyear team weighed in deciding not to prosecute Clinton was the absence of direct proof that Clinton knew her emails contained classified information.
There was no evidence that the senders or former Secretary Clinton believed or were aware at the time that the emails contained classified information. In the absence of clear classification markings, the prosecutors determined that it would be difficult to dispute the sincerity of these witnesses’ stated beliefs that the material was not classified.
Was there any direct evidence—beyond the circumstantial evidence of possessing 337 documents bearing classification markings—that Trump knew he possessed classified documents? Indeed, there was. As just noted, he allegedly admitted as much in the two meetings in 2021—one of which was recorded.
On top of that, Trump or his surrogates have repeatedly admitted publicly that he knew he possessed documents that were marked as classified. To be sure, they have offered excuses for his possessing them, but those excuses have been far-fetched, inconsistent with the facts, and inconsistent with each other. Former Trump Defense Department official Kash Patel, for instance, told Breitbart in May 2022 that, shortly before leaving the White House, Trump declassified “whole sets of materials” marked classified in Patel’s presence because Trump “thought the American public should have the right to read [those documents] themselves.” Yet, after absconding with them, Trump never made any of those documents public.
In August 2022, another Trump surrogate floated the notion that Trump had issued a “standing order” to render documents declassified as soon as he carried them off the White House premises in January 2021. But 18 former Trump administration officials told CNN that they never heard of any such order, with some characterizing the claim as “laughable” or “a complete fiction.”
At times, Trump has suggested that the FBI planted classified documents at his premises. Finally, Trump has also claimed—and is still claiming—that the Presidential Records Act conferred upon him an unreviewable, unilateral power to declare documents containing sensitive national defense information to be “personal” and then to do with them as he pleased. “In other words,” he said on the night of his arraignment, “whatever documents a president decides to take with him, he has the right to do so. It’s an absolute right. This is the law.” (For a refutation of Trump’s interpretation of the Presidential Records Act, see “The Presidential Records Act, Clinton’s Socks, and Trump’s Boxes.”)
Trump’s last theory raises profoundly disturbing questions. What if Trump is still hoarding and hiding nuclear or military secrets? Does he consider them his keepsakes and souvenirs under his outlandish interpretation of the Presidential Records Act? Can he frame and hang them on the walls of his golf clubs to serve as conversational ice-breakers? Can he sell them at auction? Can he swap them in business deals?
The fact that Trump is still asserting—right now—that this preposterous theory justifies his conversion and misappropriation of documents containing national security secrets makes his case radically different from Clinton’s. She, after all, never insisted on her right to store classified material on her private server.
I count each of Trump’s four categories of implausible and inconsistent exculpatory statements—all but admitting his willful retention of classified documents—as additional factors rendering Trump’s case incomparably more serious than Clinton’s. Similarly, Trump’s alleged direct admissions of wrongfully possessing classified documents at the two meetings in Bedminster in 2021, one of which was recorded, constitute two more factors making Trump’s guilt palpably more provable than Clinton’s. Those six factors bring us to 685.
Personal Warnings That Information Was Classified
A fourth consideration that the Midyear team said counseled in favor of non-prosecution was the following (per the inspector general): “There was no evidence that former Secretary Clinton had any contemporaneous concerns about the classified status of the information that was conveyed on her unclassified systems, nor any evidence that any individual ever contemporaneously conveyed such concerns to her.”
Did anyone, in contrast, convey concerns to Trump that he might be unlawfully possessing classified information? Indeed, they did. Though I am almost certainly omitting scores of examples, suffice it to say that the federal grand jury’s May 11 subpoena demanding return of all documents with classification markings must count as one such expression of concern. A second would be the letter the FBI sent him on June 8, 2022, referenced in the redacted search warrant for the Mar-a-Lago premises that was unsealed on August 26, 2022:
As I previously indicated to you, Mar-a-Lago does not include a secure location authorized for the storage of classified information. As such, it appears that since the time classified documents [REDACTED] were removed from the secure facilities at the White House and moved to Mar-a-Lago on or around January 20, 2021, they have not been handled in an appropriate manner or stored in an appropriate location. …
Each of these warnings renders Trump’s crimes more serious and more provable than Clinton’s, raising the number of such factors to 687.
Was the Conduct Planned?
A fifth reason the Midyear team listed for not prosecuting Clinton was that “[t]here was no evidence that Clinton set up her servers or private email account with the intent of communicating or retaining classified information, or that she had knowledge that classified information would be communicated or retained on it.”
In contrast, the indictment alleges that Trump engaged in an intentional and rococo 18-month scheme to remove and retain classified information from proper storage. This constitutes a 688th factor making Trump’s conduct materially more provable and more grave than Clinton’s.
The Obstruction and False Statements
As noted earlier, the Midyear team never had any occasion to suspect that Clinton had committed any of the four obstruction of justice or two false statement offenses with which a grand jury has now charged Trump. In contrast, the indictment alleges that Trump violated each of those statutes and, in several instances, did so in multiple ways.
For instance, the indictment alleges that Trump conspired with his body man, Waltine Nauta, to obstruct justice, in violation of 18 U.S.C. § 1512(k), in at least six ways: (a) suggesting to attorney his Corcoran that he falsely tell the FBI and grand jury that Trump had no documents responsive to the May 11, 2022 grand jury; (b) moving boxes to conceal them from Corcoran, the FBI, and the grand jury; (c) suggesting that Corcoran hide and destroy documents responsive to the subpoena; (d) providing just a fraction of documents responsive to the subpoena while falsely claiming to comply fully; (e) causing a false certification to be submitted to the FBI and grand jury falsely claiming that all responsive documents had been furnished; and (f) making of false and misleading statements to the FBI in May 26, 2022. Though the last category of false statements were made by Nauta, they were allegedly made in furtherance of the conspiracy, so we should count them against Trump.
Similarly, the government alleges that some of the same acts just described also amount to violations of a second obstruction of justice statute, 18 USC 1512(b)(2)(A), in two ways; of a third obstruction statute, 18 USC 1512(c)(1), in one way; of a fourth obstruction statute, 18 USC 1519, in two ways; of the first clause of the false statement statute, 18 USC 1001(a)(1), in one way; and of its second clause, 18 USC 1001(a)(2) in three ways.
That final allegation actually comprises three false statements contained in the false certification that Trump had his attorney Christina Bobb sign for submission to the FBI and grand jury, claiming that:
a. “A diligent search was conducted of the boxes that were moved from the White House to Florida”;
b. “This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena”; and
c. “Any and all responsive documents accompany this certification.”
According to the indictment, Bobb had never read the subpoena, had not been present for Corcoran’s search, did not know which documents Corcoran was returning, and appears to have had no knowledge that Trump and Nauta had hidden responsive documents from Corcoran.
In sum, the indictment charges that Trump committed these six obstruction or false statement felonies in 15 different ways. That’s 15 more reasons why Trump’s acts represent wrongdoing of a different order of magnitude than Clinton’s. And they bring us to a total of 703 ways in which Trump’s conduct was materially more grave, and provably so, than Clinton’s.
Of course, that still leaves us with one last hurdle. It’s Sen. Graham’s point. Regardless of what I’ve laid out, it’s quite true that “[m]any Republicans believe we live in a country where Hillary Clinton did very similar things and nothing happened to her.” Graham’s implication is that we have no choice but to bow to those inaccurate beliefs—indeed, to amplify them—because so many people sincerely hold them.
But that’s wrong. People of character, decency, and backbone do have an alternative. They can politely explain to the “many Republicans” in question why they are mistaken.
The only real hurdle is finding people of character, decency, and backbone.