Former President Donald Trump’s legal team has claimed the government’s classified documents case against him is political, noting that other politicians — President Biden, former Vice President Mike Pence and former Secretary of State Hillary Clinton — have all done the same.
That legal defense is unlikely to be strong at Mr. Trump’s trial, and court experts say jurors may not hear about those incidents.
Joe Moreno, a former federal prosecutor and FBI consultant, said the prosecutors are guaranteed to object to any mention of other politicians housing classified documents as irrelevant. The argument can be made to a judge if something said or offered as evidence is unrelated to the case or charges at hand.
The former president’s team, however, can try to mention the other cases during opening and closing arguments.
“They would have to tread lightly,” Mr. Moreno said. “It’s really not part of the proper defense that Trump can put on.”
U.S. District Court Judge Aileen Cannon, a Trump appointee overseeing the documents case, would have to decide any objection. She has set a trial date for Aug. 14.
Mr. Trump faces 37 criminal charges, including 31 alleging he withheld national defense information. He is also charged with concealing the possession of classified documents and making false statements. He has pleaded not guilty to all charges.
The August date likely will be delayed as the two sides file various motions and challenges to potential evidence ahead of trial.
Mr. Trump has repeatedly fumed about the unequal treatment he has received from the Justice Department in the case, and his legal team likely wants to draw a comparison with other high-profile politicians who seem to get a pass for similar transgressions.
After the FBI raided Mr. Trump’s resort on Aug. 8 to seize classified materials, news reports surfaced that Mr. Biden and Mr. Pence also had government secrets at their homes. The government retrieved those classified papers.
Mrs. Clinton was scrutinized during the 2016 campaign for improperly handling classified information that she stored on her private, nongovernment email server while secretary of state for President Obama. The FBI ultimately decided not to prosecute her over the matter.
Still, the selective prosecution argument rarely prevails.
“Courts will reject 99.99% of these claims. You cannot show you are innocent by saying: But the government should also have prosecuted that other guy over there,” said University of California, Berkeley, law professor John Yoo, who served as a deputy assistant attorney general at the Justice Department in the early 2000s.
Alina Habba, a spokesperson for Mr. Trump’s legal team, said precedent is on Mr. Trump’s side. She pointed to the “Clinton sock drawer case.” Judicial Watch, an activist group, sued in 2012 for access to audio recordings that President Clinton made with a historian while in office. After leaving office, Mr. Clinton stored the recordings in his sock drawer.
A federal judge in Washington dismissed the case, which sought the recordings under the Freedom of Information Act.
“That is case law. That is legal precedent that will, of course, be used in front of the judge,” she said.
The ruling in the Clinton case, however, hinged on the distinction between government property and personal property.
Mr. Trump has repeatedly invoked the Clinton case while defending himself on social media and in a speech just hours after his arraignment.
Bringing it up in court is another matter. Any mention of Hillary Clinton, Mr. Biden or Mr. Pence will be a tricky legal defense.
Legal claims about what another person did are irrelevant during a criminal prosecution, said Jared Carter, a constitutional law professor at Vermont Law and Graduate School.
“Even if they were comparable acts, and evidence suggests they are not, it’s not a legal defense. It’s what fourth-graders say on the playground,” he said.
Mr. Trump’s efforts to invoke past classified documents cases are complicated by the release last week of an audio recording in which he discussed and showed classified national security information to people without proper security clearances.
Patrick Eddington, senior fellow in homeland security and civil liberties at the Cato Institute, said Mr. Trump’s situation is different because he tried to conceal records rather than hand them over as Mr. Pence and Mr. Biden reportedly did.
“There are core differences between the two cases, including the magnitude of what Trump has done and his efforts to conceal what he was doing. Biden and Pence seemingly came clean out at the outset,” he said.
• Jeff Mordock can be reached at jmordock@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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