WASHINGTON – As former President Donald Trump faces 37 federal charges for amassing hundreds of classified documents after leaving the White House, many of his supporters insist Trump is being unfairly targeted.
But what they don’t say is that Trump is the only former official who refused to turn over all the classified documents when asked about them. Nor do they say Trump is the only official who tried to prevent investigators from releasing other classified records in his possession, as alleged in the indictment against him.
Trump’s alleged intent to preserve the documents, and his lack of transparency about what he had, is what elevates his case from an unfortunate filing cabinet to a crime, experts say.
US President Joe Biden answers a question during a joint news conference with UK Prime Minister Rishi Sunak in the East Room of the White House on June 8, 2023 in Washington, DC.
Drew Angerer | Getty Images
Hillary Clinton, when she was Secretary of State, ran an email server with classified information in some emails on a personal computer server in her home. After a lengthy investigation that dominated the 2016 presidential campaign, the FBI advised the Justice Department not to press charges while Clinton and her colleagues “were extremely careless.”
Lawyers for the President Joe Biden in November of last year, he discovered 10 classified documents in an office he used in downtown Washington. The lawyers immediately called the National Archives, which took over the documents the next day. A search of Biden’s home in Wilmington, Delaware turned up six more documents, which were also immediately turned over. Attorney General Merrick Garland appointed a special counsel to investigate how the documents got there, and the investigation is ongoing.
But it’s not just the Democrats. Mike Pence, who was Trump’s vice president, searched his home after finding the Biden documents and discovered a dozen classified documents, which he immediately turned over to the National Archives. Voluntary FBI search of Pence’s home turns up another classified document, 13 in total June 1 Justice Department informed Pence that this closes his case and no charges will be filed.
So why is Trump being impeached while Pence and Clinton are not? Experts say the key difference is intent, specifically what Trump allegedly did after learning that the National Archives wanted back the classified documents it had.
“I think if Donald Trump and his team had responded to the subpoena and turned over everything they had, we wouldn’t be here today,” said Jon Sale, a Miami attorney who declined an offer to join Trump’s legal team. “That’s why we’re here. That’s why this case was charged.”
The Justice Department’s indictment includes photos of classified documents found at former President Donald Trump’s Mar-A-Lago residence.
By spring 2022, the National Archives’ year-long effort to get Trump to hand over presidential records that didn’t belong to him had 15 boxes, including nearly 200 classified documents, sent back to DC.
But photos from Mar-a-Lago show Trump brought more than 80 boxes of presidential records with him to Florida when he left the White House, meaning there were dozens of records he still hadn’t returned that the archives clearly knew about . including classified documents. Out of options, the archives referred the case of the missing classified documents to the Justice Department, which on May 11 obtained a grand jury subpoena for all remaining classified materials in Trump’s possession.
Just before lawyers arrived at Mar-a-Lago to retrieve the subpoenaed documents, prosecutors have security footage of Trump’s butler and co-defendant Walt Nauta moving a number of boxes between Trump’s personal residence and a storage facility. The lawyers were only allowed to search the warehouse.
Sale, who heads the white-collar defense practice at Nelson Mullins, said Trump could have argued to the archives that it deserved to keep the documents he took.
“If they felt there was a legal reason not to turn something over, they could provide a privilege bill and say, ‘We think some of this is privileged and we’re not going to overturn it.’ Those are options,” Sale said Tuesday on MSNBC. “There’s no option to say, ‘Let’s tell them we don’t have it.’
Yet that’s exactly what Trump reportedly asked his lawyer for, according to notes taken on the day of the search.
Former US President Bill Clinton (right) and Hillary Clinton, former US Secretary of State, during an interview for an episode of “The David Rubenstein Show: Peer-to-Peer Conversations” at the 92nd Street Y in New York, US, on Thursday, May 4 2023.
Jeenah Moon | Bloomberg | Getty Images
Trump’s apparent intent to keep the records while allegedly lying to authorities about them and showing them to visitors is what sets his case apart from Clinton, Pence and Biden.
“When you’re talking about President Biden and former Vice President Pence, you’re talking about total transparency,” David Kelley, a former U.S. attorney for the Southern District of New York, said on PBS’ “NewsHour” this week.
“But when you go ahead and are told you have documents you shouldn’t have, and then withhold it, and then lie about it, that’s a criminal issue because it shows knowledge and intent to break the law.”
Instead of turning things around, prosecutors say Trump spent more than a year deliberately hiding classified materials from everyone and conspiring with Nauta to keep them secret.
To this day, Trump insists that the presidential records sought in the archives belong to him and does not deny that he refused to return them.
Instead, he claimed Tuesday night, hours after pleading not guilty in the case, that the boxes of classified documents did contain “memorabilia” and that he “didn’t have a chance to go through all the boxes. boring work, takes a long time.”
When FBI agents went through the boxes in August 2022, they found more than 100 classified documents that Trump and his lawyers had not returned. By the time FBI agents finished searching Mar-a-Lago, total amount classified documents that Trump took from the White House, including those he had previously returned, exceeded 300.
This amount of records, compared to 13 records and 16 documents from Pence and Biden, is another significant factor that differentiates Trump’s situation.
It also reflects one of the factors cited by then-FBI Director James Comey in 2016 when explaining what elements elevate the discovery of classified documents to the level of a crime.
“All of the cases prosecuted involved some combination of: apparently intentional and deliberate mishandling of classified information; or large amounts of material exposed in such a way as to suggest willful misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice,” Comey said at the time.
“We don’t see those things here,” he added of the Clinton case.