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After Donald Trump was indicted on federal charges for allegedly keeping, hiding and lying about highly sensitive documents at his Florida club and sometimes residence, his protectors were quick to defend him by pointing to others who purportedly did the same thing but escaped prosecution.
Yes, of course, we must apply the law equally. The same alleged crime should be treated the same way. But that also means dissimilar actions deserve different responses.
And so it’s necessary to look at the details of various cases to discern if prosecution decisions were equitable or unfair.
Prosecutions are built on evidence. And what’s striking about the federal indictment against Trump — and if you haven’t read it yourself, you should — is the strength and range of the evidence. There are photos, text messages, video and audio recordings, witness testimony and the results of last year’s search of Mar-a-Lago.
What this extensive evidence lays out is that Trump not only stored very sensitive documents improperly, but also moved them around so that he could keep them — even after a court issued a subpoena ordering him to give them back. He also went through the boxes brought to his residence and he talked to his lawyers about how to hide and dispose of documents. When at his Bedminister property in New Jersey, Trump showed off military documents, according to the indictment.
That’s why Trump was charged with the crimes of “willful retention of national defense information” (including military and nuclear secrets), “conspiracy to obstruct justice, withholding a document or record, concealing a document in a federal investigation, being involved in a scheme to conceal,” and “making false statements and representations.” Every document for which Trump faces charges was seized in the August 2022 search — that is, after he lied about returning them all.
What Mike Pence and Joe Biden did with documents they shouldn’t have had is in stark contrast. When found, Pence and Biden gave them back immediately, and there were much fewer than what Trump had. The special counsel investigating them has already declined to prosecute Pence.
And what about Hillary Clinton? In laying out why charges were not being brought against her, then-FBI Director James Comey explained, “All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.” Trump’s actions involved three of those four.
Moreover, the Justice Department’s inspector general found that “[n]one of the emails Clinton received were properly marked to inform her of the classified status of the information,” and Clinton “worded emails carefully in an attempt to ‘talk around’ classified information.” In contrast, Trump willfully kept highly classified materials that were clearly labeled, as he himself admits.
What the details involving Pence, Biden and Clinton and the federal Trump indictment show, is that what Trump is charged with doing stands apart and was far more egregious.
And evidence has been nonexistent for non-document related allegations touted by Trump defenders — the claims Biden was involved with bribery and that there are tapes to prove this. Republican Sen. Ron Johnson said, “We don’t know really if the tapes exist.” Likewise, Rep. Jim Jordan, a Republican, said, “We don’t know for sure if these tapes exist.” There is also no proof that Biden as vice president received a bribe or did anything involving Ukraine beyond carrying out the bipartisan policy of Congress, the administration and our allies. After the FBI assessed these claims for eight months in 2020, they determined verification was lacking. This is again quite different from the strong and extensive evidence arrayed in the Trump documents case, which will be tested in Trump’s trial.
To be sure, everyone charged with a crime is innocent before proven guilty and Trump will get his day in court.
Right now, comparing Trump’s situation to others, with the commitment to treating all equally, strengthens rather than weakens the legal case against the former president.
