The Comey-Clinton Document Standard and Trump When Hillary kept classified information on her private email server, Justice and the FBI let her off.
“If Mr. Garland can’t make a compelling case that Mr. Trump’s transgressions are greater than Mrs. Clinton’s, with enough clear and convincing evidence to warrant a criminal charge, the better judgment is not to prosecute and put the country through the trauma of a political trial that half of America will suspect is a case of unequal justice.”
When Jim Comey held his July 2016 press briefing on Hillary Clinton’s emails, his conclusion was this: “Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.”
In other words, Mrs. Clinton could have been indicted but wasn’t. That ended the Clinton email saga as a legal matter—with a lecture but without a prosecution. As we wrote at the time, this was an outrageous usurpation by the FBI director, whose role was to investigate and turn the evidence over to a U.S. Attorney or the Attorney General to decide on prosecution.
He was letting the Democratic Justice Department off the hook from having to make its own judgment. Attorney General Loretta Lynch let Mr. Comey’s judgment stand. After his press statement, Mrs. Clinton was free to continue her run for the White House, and the press declared the issue put to rest.
We criticized that decision at the time, but for better or worse Mr. Comey and the Obama Justice Department had set the Clinton Standard for treating a prominent politician who mishandles classified documents. Lesser public officials might have been prosecuted, or at least sanctioned, and some were. But from then on any such prosecution for comparable alleged offenses has to be made in light of the Comey-Lynch-Clinton precedent.
All of this bears on the current furor over Donald Trump’s handling of classified documents at his home in Mar-a-Lago. If Mrs. Clinton wasn’t prosecuted, is there a different standard for Mr. Trump?
Mrs. Clinton was obliged to follow all the typical classification rules that apply to government officials. As Mr. Comey said in his 2016 press statement, Mrs. Clinton falsely claimed that she had turned over all work-related emails to State, but the FBI found “several thousand” work-related emails that weren’t turned over.
He also said Mrs. Clinton’s lawyers hadn’t even read her emails when deciding what to turn in. They relied on “header information” and search terms, and then “cleaned their devices in such a way as to preclude complete forensic recovery.” Recall that she also deliberately used private personal servers on which she conducted government business.
All of this sounds similar to the behavior the FBI says in its affidavit that it suspects of Mr. Trump, who may not have turned over all the documents the National Archives and FBI wanted. One complicating legal difference is that Mr. Trump operates under the Presidential Records Act (PRA), whose language assumes there will be some give and take between the Archives and a former President over documents.
We don’t know everything about the documents Mr. Trump retained, how he handled them, what he told the FBI and other facts that are still hidden by the redactions in the affidavit. New details may emerge that differ in significant ways from Mrs. Clinton’s behavior.
But that isn’t evident so far, and Mr. Trump’s lawyers will surely argue that under the PRA he has some right to hold documents, even many that are classified, for some period of time or some personal purpose.
All of this has to weigh on Merrick Garland as the Attorney General considers whether to indict Mr. Trump for his handling of classified documents. We didn’t like the Clinton Standard but we didn’t establish it. A Democratic Justice Department did, and in a case with enormous political consequences.
If Mr. Garland can’t make a compelling case that Mr. Trump’s transgressions are greater than Mrs. Clinton’s, with enough clear and convincing evidence to warrant a criminal charge, the better judgment is not to prosecute and put the country through the trauma of a political trial that half of America will suspect is a case of unequal justice.
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