Conservatives Are Demanding that Trump Be Treated Like…Hillary Clinton?

Photo: Rick Wilking/Reuters

Republicans can’t seem to help themselves: They always bring it back somehow to Hillary. When Mar-a-Lago was searched pursuant to a valid warrant and highly sensitive, top secret documents were retrieved, Trump predictably pointed at Clinton’s emails to claim there was somehow a double standard at work. “Hillary Clinton was allowed to delete and acid wash 33,000 emails AFTER they were subpoenaed by Congress,” Trump complained, falsely, in a post on his Truth Social platform. “Absolutely nothing has happened to hold her accountable.”

Conservative allies of the former president have now taken up that cry. In an OpEd over the weekend, The Wall Street Journal’s editorial board called for the “Comey-Clinton” document standard, under which former FBI Director James Comey ultimately decided not to indict Clinton, to apply now to Trump—meaning Attorney General Merrick Garland should not indict him. One-time Trump foe turned awkwardly staunch sycophant Sen. Lindsey Graham (R-SC) chimed in, irresponsibly warning on Fox News’ Sunday Night in America, “If they tried to prosecute President Trump for mishandling classified information after Hillary Clinton set up a server in her basement, there literally will be riots in the street.” 

The mere mention of the name Hillary Clinton will have the Trump base seeing red, rendering any hope of reasoned discourse, which was already admittedly dim, quite impossible. But for persuadable voters, who have swung nine points recently and are beginning to break for the Democrats this election cycle, it is worth laying out the reasons why the Trump and Clinton investigations are not in the same league, and why a decision to charge Trump today would be consistent with Comey’s decision not to charge Clinton.

Clinton’s Mishandling of a Handful of Classified Documents

Clinton was under investigation for using a private email server over which a handful of documents that were later deemed to be classified had been improperly transmitted. The total number of documents that had classified markings was ultimately not specified by Comey, other than to say there were “some.” Eight of the documents were marked with top secret designations, but the documents were exchanged between Clinton, who had security clearance while serving as Secretary of State, and others who also had the proper security clearance.

The manner in which these documents and information were exchanged—via a private email server—drew the attention of investigators. Clinton cooperated fully with prosecutors and testified for 11 hours under oath before a Congressional committee. She was never accused of obstruction, and the nature of the classified information she inadvertently exchanged did not rise to a threat level that might trigger more serious allegations.

FBI Director Comey ultimately determined in July of 2016 that Clinton, while “extremely reckless” in her handling of the documents (a criticism that seems almost laughable by today’s Trumpian standards), would not be indicted because there was zero evidence that Clinton intentionally transmitted or willfully mishandled classified information. As a result, he said, “our judgment is that no reasonable prosecutor would bring such a case.” In 2019, during the Trump administration, a U.S. State Department investigation concluded that there was no evidence of deliberate mishandling of classified material by any state department employees.

Trump’s Theft of Hundreds of Top Secret Documents

The case against Trump stands in marked contrast to Clinton’s. Trump took with him to Mar-a-Lago a trove of highly sensitive, top secret documents including human source intelligence and documents that were Special Access Program materials. These documents were marked with the highest levels of classification and comprise some 1,000 pages, based upon what has been recovered so far. The unauthorized possession of such documents is a per se violation of the Espionage Act, for which Trump and likely others are being investigated, because these are documents that in the wrong hands could endanger our national defense.

Trump kept the highly sensitive government documents at Mar-a-Lago, a highly insecure location known to be frequented by spies and enemies of the United States. Trump openly resisted requests from the National Archives for the return of these documents for over a year, and then he further resisted a grand jury subpoena for them, requiring the head of the Justice Department’s Counterintelligence section to pay a visit and retrieve key documents. Even then, Trump’s lawyers lied to investigators by submitting a signed declaration that all documents responsive to the subpoena had been returned, when that manifestly was untrue.

The efforts by Trump’s advisors to impede and mislead investigators led to an application of a search warrant for Mar-a-Lago, resulting in the recovery of even more top secret and classified documents. Trump’s efforts to delay, resist, obfuscate, and obstruct evince an intentional and willful state of mind, even while Trump retained possession of some of the nation’s most sensitive secrets.

As the above discussion makes clear, it doesn’t take much to dispose of comparisons between Clinton and Trump. That the right is coming out with more of this line speaks to the cynicism and banality of their argument, namely that the Justice Department should give Trump a pass simply because it gave Clinton one. As author and political commentator Douglas Blackmon astutely observed, “A clear sign of propaganda is when legal/ethical principles that were *vital* when they might injure enemies are suddenly ‘welcome’ if they might help an ally.” This, Blackmon noted, is exactly what the Wall Street Journal’s editorial board of “sad shape-shifters” has demanded in its “latest clumsy defense of Trump.”