The Justice Department’s aggressive pursuit of former President Donald Trump stunned legal scholars who say it makes his case starkly different from other politicians who have been investigated but not prosecuted for mishandled government secrets.
While Mr. Trump is staring down spending the rest of his life in prison, other high-profile politicians investigated on suspicion of mishandling classified materials — including former Secretary of State Hillary Clinton and former Vice President Mike Pence — were quickly exonerated by the Justice Department.
Robert W. Ray, who succeeded Kenneth W. Starr as independent counsel in the Whitewater investigation into President Clinton and Mrs. Clinton, said bringing charges against Mr. Trump creates the appearance that the Justice Department is acting politically.
“The Justice Department under a president who is a candidate for reelection is bringing charges against a former president who is a candidate in opposition for president within the election cycle. I don’t know how the average American can consider that anything but a political act,” he said. “A lot of people see that as weaponizing the Justice Department against an opponent.”
Indeed, polls find that nearly half of Americans believe the criminal charges against Mr. Trump are politically motivated.
An ABC/Ipsos poll conducted after the indictment was unsealed on Friday found that 47% of respondents said the charges against Mr. Trump were politically motivated, while 37% said politics were not a factor in the indictment.
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Still, 48% of Americans said the former president should have been charged, compared with 35% who said he should not.
Mr. Trump is scheduled to appear Tuesday afternoon in a federal court in Miami to face 31 criminal counts of willful retention of national defense information and 37 charges overall.
Prosecutors say Mr. Trump violated the Espionage Act by storing the highly sensitive documents at his home and office at his private Mar-a-Lago club in Palm Beach, Florida. Each of the 31 counts carries a maximum prison sentence of 10 years — easily adding up to a veritable life sentence for Mr. Trump, 76.
Late last year, federal investigators opened a probe into classified materials that turned up in a former office belonging to President Biden and the garage at his home in Wilmington, Delaware. Little is known about the investigation led by special counsel Robert K. Hur.
The indictment filed by special counsel Jack Smith suggests that if Mr. Trump had returned all the classified documents he took, he likely would not have been charged with a crime. The indictment doesn’t charge the former president with illegal retention of any of the documents he returned to the National Archives and Records Administration.
Critics of Mr. Trump seized on this to highlight the differences between the case against him and other high-profile politicians. He is accused of hiding the classified materials and misleading the government and his attorneys.
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Mr. Trump moved boxes out of a storage room, suggested that an attorney hide or destroy documents that had been subpoenaed, and caused another person to make false statements about whether all the documents were accounted for, according to the indictment.
In contrast, Mr. Biden and Mr. Pence worked to return the documents to the government once they discovered the materials in their possession.
Mr. Ray disagreed.
“When people make the silly comparison that Pence and Biden cooperated, I smile. Just because someone fails to cooperate, they should be charged with a crime?” he said. “That’s a meaningless comparison.”
Such comparisons overlook that Mr. Trump, as president, had the authority to declassify the documents. That power would not apply to Mr. Pence, Mrs. Clinton or even Mr. Biden, whose classified documents date back to his time in the U.S. Senate and as vice president in the Obama administration.
Mr. Trump is the only one of the four whose home was raided by federal agents but also the only one who resisted a subpoena. Mr. Pence and Mr. Biden both consented to searches of their homes.
Jonathan Turley, who teaches constitutional law at George Washington University, said the Justice Department’s actions in other investigations create the appearance of a double standard.
“The optics are terrible,” he said. “The Justice Department was accommodating to the point of passivity with Clinton. The Clinton team refused to turn over computers and secured ridiculous immunity agreements from the government. For many, it seems like Clinton got the shrug. Trump got the shackles.”
Mrs. Clinton had used a personal email service to conduct government business while serving as secretary of state under President Obama. As a result, classified information was stored and distributed on an unsecured, non-government server.
Of the tens of thousands of emails examined by investigators, 100 should have been deemed classified at the time they were sent. Of those, 65 should have been deemed “secret” and 22 deemed “top secret.” The State Department retroactively designated an additional 2,093 emails as confidential.
Former FBI Director James B. Comey said in 2016 that Mrs. Clinton should have known that some of the emails were classified but others could have been understandably missed.
Mr. Comey was also quick to clear Mrs. Clinton. He convened a rare press conference to say there was no evidence that she intentionally or willfully mishandled classified information. He also rebuked Mrs. Clinton for being “extremely careless.”
“Our judgment is that no reasonable prosecutor would bring such a case,” Mr. Comey said just days before the 2016 presidential election.
The FBI also cleared three other top Clinton aides who were implicated in the case: Huma Abedin, Cheryl Mills and Jake Sullivan, who is now Mr. Biden’s national security adviser.
It was later revealed that federal prosecutors granted immunity in the investigation to Ms. Mills and two other Clinton aides: lawyer Heather Samuelson and John Bentel, who ran the State Department’s information resources management office.
The Justice Department rarely hands out immunity agreements in high-profile cases. In the Trump case, prosecutors charged Mr. Trump’s aide Walt Nauta rather than offer him an immunity deal to testify.
Few details are known about the ongoing investigation of Mr. Biden’s stash of classified documents.
After the discovery of classified materials in Mr. Biden’s former office and home, Attorney General Merrick Garland appointed Mr. Hur to determine whether the president committed any crimes.
Mr. Biden’s attorneys insist they have cooperated throughout the investigation. No evidence has emerged to suggest that Mr. Biden attempted to obstruct returning the documents or intentionally moved the classified documents.
Mr. Turley said the handling of the documents raises a lot of questions.
“Biden’s account of the handling of the documents defies logic. The documents appear to have been moved and repeatedly divided. One reportedly was found in or near his library,” he said. “The handling of these documents suggests a purpose and knowledge.”
It remains to be seen whether Mr. Hur will be as zealous in investigating the president as Mr. Smith was in pursuing Mr. Trump.
“Hur can insulate President Biden by avoiding a direct interview or statement from him,” Mr. Turley said. “With Trump, the Justice Department was highly aggressive. The public is likely to watch to see if Hur shows the same ‘no hold barred’ attitude of Smith.”
The investigation of Mr. Pence was closed last week, just days before he formally announced his 2024 bid for the Republican presidential nomination. His attorneys said he quickly returned all documents to the government.
Quickly resolving the Pence investigation enables him to campaign. Mr. Trump will be forced to sit on the sidelines next year while dealing with federal criminal charges and unrelated state charges in New York.
• Jeff Mordock can be reached at jmordock@washingtontimes.com.
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