Former President Donald Trump was indicted Thursday on charges related to violations of the Espionage Act and the mishandling of classified documents taken from the White House after he lost reelection. The Republican whining has already begun.
Despite running against Trump for next year’s GOP presidential nomination, Florida Gov. Ron DeSantis ran to his defense and asked why the Department of Justice was “so zealous in pursuing Trump yet so passive about Hillary [Clinton] or Hunter [Biden]?”
Republicans are sure to ramp up the comparisons between Trump’s indictment and similar cases involving former Secretary of State Clinton, former Vice President Mike Pence and President Joe Biden, all of whom had some classified material in their possession as private citizens, as they rush to defend Trump.
The allegations against Trump, however, when paired with the available evidence of his state of mind, are dramatically different from the potential charges considered against Biden, Clinton or Pence.
The Trump Case
A federal grand jury has indicted Trump on allegations he willfully retained national defense information under the Espionage Act, making false statements, conspiracy and obstruction.
The former president has been under investigation for more than a year for taking classified documents after he left office and not returning them after requests. The investigation began after the National Archives discovered that a number of key documents from the Trump administration were missing in the files turned over at the end of his White House term. They asked the former president to return them if he had them.
After much foot-dragging, Trump complied and sent 15 boxes of documents to the archives. Upon inspection, the agency found 197 classified documents in those 15 boxes, including some with sensitive national security information.
The archives referred the matter to the Justice Department, which issued a subpoena for the return of any other documents. Trump’s lawyers turned in 38 more documents, claiming it was all they had.
But Justice Department investigators had reason to believe otherwise. The FBI searched Trump’s home at Mar-a-Lago on Aug. 8, 2022, recovering 102 more documents with classification markers that Trump had withheld from the prior requests and subpoena. Following the search, and as it became clear a Trump-Biden 2024 rematch was a real possibility, Attorney General Merrick Garland appointed Jack Smith, a veteran prosecutor and political independent, as a special counsel to oversee a grand jury investigation into Trump’s actions.
Since then, more information has come out to show that Trump actively sought to prevent the return of classified documents and knew he had taken classified documents that he had not declassified while president. Trump aides moved boxes containing the documents ahead of the FBI search. Trump also showed classified documents to others on at least two occasions, according to the indictment.
In one instance, prosecutors obtained an audio recording from former Trump chief of staff Mark Meadows’ ghostwriters in which Trump bragged about a classified document prepared for him by the Department of Defense, and he can be heard acknowledging that he knew he couldn’t show it to them while he apparently was showing it to them.
“Secret. This is secret information. Look, look at this. This was done by the military and given to me,” Trump says on the recording, first reported by CNN. “As president, I could have declassified, but now I can’t,” he added.
Trump also showed a political aide “a classified map related to a military operation” and said “he should not be showing it” to the aide, according to the indictment.
The indictment charges Trump with 31 counts of retaining classified documents, including those covering U.S. military contingency plans, U.S. military operations in a foreign country, military and nuclear capabilities of the U.S. and foreign countries, and details about military actions and attacks in foreign countries.
Let’s recap: Trump is accused of actively taking classified documents that he knew he had not declassified, refusing to hand them over despite receiving a subpoena for them, seeking to further hide them from investigators, telling investigators he didn’t have any more documents and showing classified documents to people without security clearances on at least two occasions. And there’s recorded audio evidence that points to his state of mind and understanding of the law.
This is all far different from what was alleged or found to be the case in regards to Biden, Clinton and Pence.
The Hillary Clinton Case
The obvious comparison that Republicans have, and will, make to Trump’s predicament is Clinton’s use of a private email server while she was secretary of state from 2009 to 2013. The email server became a public controversy during her 2016 presidential campaign against Trump, with his rally crowds chanting “Lock her up,” a sentiment Trump said he was “starting to agree with” in July 2016. Trump ally Alex Jones sold “Hillary for prison” T-shirts.
The initial investigation into Clinton’s private email server revealed classified information had been shared in upwards of 2,000 email chains stored on the server. In making the server a campaign issue, Trump promised to enforce the law.
“In my administration, I’m going to enforce all laws concerning the protection of classified information,” Trump said in August 2016. “No one will be above the law.”
Trump’s repeated attacks on Clinton and promises of upholding the rule of law are cited in the indictment against him as evidence that he knew about the importance of enforcing the proper handling of classified information.
The investigation into Clinton’s private email server crescendoed when FBI Director James Comey’s July 2016 statement that although Clinton and her aides were “extremely careless in their handling of very sensitive, highly classified information,” no charges would be filed because “our judgment is that no reasonable prosecutor would bring such a case.”
Comey used such prosecutorial discretion because there was no evidence Clinton or her aides failed to turn over documents or that the server was set up to receive classified information and retain it and that there was little evidence that the documents deemed to be classified were properly marked as such when they were sent and received in her email.
A Justice Department inspector general’s report on the investigation and the agency’s handling of it was released in June 2018, revealing that none of the emails contained clear classification markers as required under executive rules.
Just three email chains “contained any classification markings of any kind,” according to the IG report. The classified documents in these three chains were “call sheets” marked with the lowest priority of classification, providing reminders and talking points on scheduled calls between Clinton and foreign leaders.
It was also difficult for prosecutors to determine if Clinton and her aides intended to receive and retain classified information because the State Department’s email oversight and retention practices had been so poor for years that her actions were just normal practice.
Two State Department reviews conducted under Trump’s secretaries of state, Rex Tillerson and Mike Pompeo, also found that Clinton bore no “individual culpability” for any “spillage” of classified information and there was “no persuasive evidence of systemic, deliberate mishandling of classified information.”
Four investigations revealed that Clinton did not have forethought in her retention of classified information, just three of the emails on her server were even marked as classified when they were received and she complied with the Justice Department’s investigation fully. This is almost the exact opposite of what Trump is alleged to have done.
The Joe Biden And Mike Pence Cases
After the FBI searched Trump’s home at Mar-a-Lago, aides for Biden and Pence, in the process of sorting through documents held by the two former vice presidents, alerted the National Archives to the presence of classified documents found in their possession.
The classified documents held by Biden emerged after the president’s personal lawyers found them while moving boxes stored in a locked closet at a nonprofit affiliated with Biden in Washington called the Penn Biden Center. Subsequent searches revealed other documents at Biden’s home in Wilmington, Delaware. A Department of Justice search of Biden’s vacation home in Rehoboth Beach, Delaware, turned up no additional documents.
Since the 20 or so documents were discovered, Biden has said he had no intention of taking any such documents and did not even know what was in them. Unlike Trump, his lawyers immediately alerted the National Archives when the documents were discovered and he has complied with all Justice Department activities since, including allowing broad searches of his personal residence, the Penn Biden Center and his vacation home.
Attorney General Merrick Garland appointed former U.S. Attorney Robert Hur as special counsel to investigate whether any further action is warranted in the case of Biden’s documents.
Following the discovery of classified documents at Biden’s locations, Pence ordered his lawyers to review the papers he took from his time as vice president for the inclusion of any classified materials. After finding about a dozen such documents, his lawyers alerted the archives and turned the documents over to the Justice Department. The FBI later conducted a search of his home in Indiana. The investigation ended on June 1 when the DOJ sent a letter to Pence telling him that “no criminal charges will be sought.”
In both cases, Biden and Pence immediately alerted the archives when documents were discovered. They both cooperated with investigators, allowing broad searches of their properties.
They, as far as we know, did not purposefully take classified documents, brag about their possession of them, lie to investigators about how many documents they had, order aides to lie about the number of documents or try to move and hide the documents from investigators.
According to the indictment, Trump did all of those things.