Hillary Clinton and Donald Trump’s cases are NOT in the same universe

Trump intentionally committed crimes

Republicans comparing Donald Trump’s actions to those of Hillary Clinton is akin to comparing a peaceful protest to the violent Jan 6 attack waged on our Capitol by Trump supporters seeking to overturn the 2020 election. True, some Republican officials have tried to rewrite the Jan 6 attack as being a “normal tourist visit.” But just as we reject that lie, we must reject any effort to equate what Trump did with Clinton’s conduct. They are not in the same universe—as I will explain.

We need to go briefly back to the Hillary Clinton email investigation to see from a legal point of view why the cases are vastly different.  As a reminder, in July 2015, the FBI opened a criminal investigation  into the then leading 2016 Democratic presidential candidate Clinton, as they examined whether the former Secretary of State’s use of a private email server violated any laws concerning the storage of classified information. After an almost a one year investigation, in July 2016, then FBI Director James Comey announced that no criminal charge would be filed against Clinton.

At the time, Comey instructively stated that in looking at past cases DOJ had prosecuted concerning “mishandling or removal of classified information” there was always some “combination” of:

1.     Clearly intentional and willful mishandling of classified information; or

2.     Vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or

3.      Indications of disloyalty to the United States; or

4.      Efforts to obstruct justice.”

Comey concluded that, “We do not see those things here” with Clinton. There was absolutely no intentional mishandling or obstruction. With respect to the so-called missing emails (Hillary had produced 30,000 but her lawyers had deleted thousands of others that were personal) Comey stated: “There was no intentional misconduct.”

Sure, there are other differences as well between Trump and Hillary. However, the key factor was as Comey repeated: “We did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information.”

In contrast, with Trump the evidence and allegations of his repeated intentional conduct are the very heart of the case.  For months after leaving office, Trump refused to return documents to the National Archives as requested. Finally, in January 2022, Trump turned over 15 boxes to the National Archives, which set off red flags when the boxes were found to contain 197 documents with classified markings, including 69 marked confidential, 98 secret and 30 top secret. That is when the DOJ got involved.

It was Trump’s refusal to allow the FBI access to see if more classified documents were at Mar-a-Lago that led to the May 12, 2022, grand jury subpoena to Trump requiring he turn over all classified materials in his possession.

From there we can turning to the indictment itself. To be clear: Every single one of the 37 charges is based on Trump’s intentional misconduct.  For starters, 31 of the three 37 felonies Trump has been charged with-as the indictment plainly states—are for “Willful retention of National Defense Information” in violation of 18 U.S.C. Section 793(e). The defense information Trump illegally possessed and failed to properly store included highly sensitive military secrets such as “United States nuclear programs” and “potential vulnerabilities of the United States and its allies to military attack.”

The indictment also lays out how Trump directed his aide—Walter Nauta-- to hide boxes containing classified documents so that Trump’s own lawyers could not find them. Specifically, the indictment says that, at Trump’s direction, Nauta moved about 64 boxes of documents from a Mar-a-Lago storage room to Trump’s residence in May 2022. He then returned “approximately 30 boxes” to the storage room on June 2 — the same day Trump’s legal team came to examine the boxes and search for classified documents to return to the government, the indictment says.

In fact, Trump’s own former Attorney General Bill Barr remarked on Fox News Sunday that these 31 Espionage charges are “solid” given Trump’s “willful” conduct: “I was shocked by the degree of sensitivity of these documents and how many there were, ... and I think the counts under the Espionage Act that he willfully retained those documents are solid counts."

Trump is also charged with obstructing justice for his intentional conduct in trying to conceal the classified documents from DOJ—and even misleading his own attorney to make a false certification in response to the grand jury subpoena.  Barr also commented on these obstruction charges Sunday, stating that the federal government ”acted in a very patient way. And what they were met was, according to the government, and the indictment, very egregious obstruction.”

And Trump--as alleged in the indictment—knowingly shared classified information on two occasions with people, the most notable in July 2021, at his country club in Bedminster, New Jersey with authors of a book. During that meeting—which was recorded- Trump told the authors while referring to plans drafted by our military to attack another country, “This is secret information. Look, look at this,” adding, “This was done by the military and given to me.” Trump can they be heard admitting that since he was no longer President, he didn’t have the power to declassify that document, “Now I can’t, you know, but this is still a secret.”

In contrast, Comey did not find any evidence of this type of intentional misconduct with Clinton. To believe the cases are the same means you are either an idiot or a Trump supporter—or both!

Putting all the legal points aside. While the GOP keeps saying we have a two-tiered justice system because Trump was charged and Hillary wasn't, I’m sorry did I miss when Hillary REFUSED to return military secrets when asked by government, SHARED these secrets with people at her country club, LOST some documents and ASKED her lawyers to LIE to government?!

At the end of the day, I doubt the obvious differences between Trump and Clinton’s conduct will matter to the Trump faithful. After all, these are the same people who still support Trump despite his attempted coup and inciting the Jan 6 terrorist attack.

But at this point, it’s no longer about convincing Trump supporters that Trump committed crimes. All that matters is that federal prosecutors can convince the 12 people of the jury that Trump committed the alleged crimes. While that is always a heavy burden for prosecutors, as Trump’s former AG Barr stated Sunday about the charges, “If even half of it is true, he is toast.”

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