When even the leading legal authorities who have defended him in his other legal battles (see, for example, here and here) argue that, largely because of the massive number of own goals, Donald Trump faces a very strong charge for his post-presidential handling of classified documents, you can be pretty sure the former CEO is really in trouble.
However, that is not to say that such views alone justify a guilty verdict. After all, the presumption of innocence remains a fundamental principle of the American legal system. Furthermore, Trump’s lawyers have yet to present their full version of the facts.
But above and beyond those uncontroversial points is an issue that is far more contentious but, in my opinion, strongly advocates for a “not guilty” verdict: the issue of selective prosecution. Specifically, as many Trump supporters claim, the former president is held to standards that others, notably his 2016 Democratic rival Hillary Clinton, have flouted with impunity.
Yet another potential example of double standards has drawn less attention: the way special counsel Jack Smith’s prosecution approach lays the groundwork for clearing President Biden of criminal mishandling of classified material.
At the heart of Smith’s case are allegations that Trump made various statements and committed various acts that were in an effort to mislead government investigators and obstruct their work. And these charges certainly seem serious. But Clinton also made false statements about his approach to handling documents (in this case, emails) containing classified information and committed actions that are difficult to describe as anything more than the destruction of evidence.
The former Secretary of State was interviewed by the FBI in 2016, but her answers were not given under oath, so it cannot be ensured that she met the legal requirements for truthful testimony. However, Clinton and her aides clearly spread falsehoods in numerous press interviews and statements about her actions, particularly the claim that more than 30,000 emails were deleted from her private server before she received a subpoena from the House of Representatives to all records on that device. In fact, they were removed after the subpoena was issued. (See here for a helpful summary and timeline.)
Clinton, of course, has claimed that the deleted emails had nothing to do with official business. But only his word remains to continue. And that’s because these messages weren’t just deleted. They were removed using BleachBit, a software program that advertises itself as including “advanced features like shredding files to prevent recovery” and “wipe free disk space to hide traces of files deleted by other applications”. Did this amount to the destruction of evidence? On a large scale? At least comparable to Trump’s apparent misconduct? An essay might have provided some answers. But since the Justice Department refused to prosecute, no one outside of the Clinton camp will ever know.
The second reason to assume that Trump’s impeachment constitutes an example of selective prosecution has to do with special counsel Smith’s decision not to charge the former president with simple unauthorized withholding of classified documents, as opposed to charges of “intentional withholding.” against Trump. with all its implications of fraud.
Obtaining a conviction based on simple unauthorized detainer would obviously have been much easier than winning a case involving intentional detainer. Because the Trump documents were where they weren’t supposed to be: an apparent total violation of Title 18 United States Code (USC) §793(f)
However, for a Department of Justice truly dedicated to the ideal of equal justice, charging Trump with this particular crime would also have required, in principle, charging President Biden (after he leaves office) and former Vice President Mike Pence for the same crimes. The decision to focus on the intentional withholding charge could serve a convenient political purpose by rebutting the double standard charge, since these are two different standards. And the principle of prosecutorial discretion could easily justify Biden and Pence getting off the hook entirely, provided they actually have fully cooperated as claimed.
Trump’s critics and others who insist that no one should be above the law are undoubtedly right. But such statements will ring terribly hollow if some Americans, or groups of Americans, turn out to be more liable to prosecution than others.