Trump Argument No. 3: The Hillary Clinton Precedent

This is the fourth post in what will loosely be a series over the next few days (“loosely” because I don’t really have a plan about what arguments should be addressed and what time frame that should happen in). The first three are here, here, and here.

Unlike the earlier posts in this series, I did not label this argument against former president Donald Trump’s federal indictment “frivolous” because I don’t think it is — namely, the Hillary Clinton precedent: the contention that because Hillary Clinton was given a pass for her egregious offenses involving classified information and obstruction (and I’d add, destroying thousands of government records), it is wrong to charge Trump with similar crimes.

In fact, this is the best argument Trump has against his indictment . . . or, at least, had against his indictment. By that, I mean that a claim of selective prosecution, which is really what Trump and his defenders are positing, works best as an argument against being charged — i.e., for the prosecutor to exercise discretion in favor of non-prosecution because, in this instance, even if Trump is guilty of crimes, the public interest in equal justice under the law demands it. This would have been a defensible reason — the Trump camp would say an indisputable reason — for Biden special counsel Jack Smith to stay his hand.

Nevertheless, once the prosecutor rejects the argument and opts to charge, selective prosecution loses most of its forcefulness — at least as a legal argument; it will continue to be a very effective political argument for a Republican presidential candidate who claims Democrats are trying to knock him out of the race. (I actually think they’re doing their best to make sure he wins the GOP nomination.)

Where the charges appear supported by strong evidence, selective prosecution is a perennial loser in pretrial litigation. The Clinton precedent is jarring because the government actually does prosecute others for classified-information and (especially) obstruction offenses. It is thus much more offensive that she got a pass than that Trump is being prosecuted — his argument that he is being singled out, while not weak, is overstated. At trial, moreover, the court will likely preclude Trump from turning his case into a trial of Clinton. The jurors will not hear all that much evidence about her, and they will be instructed that the only issue they must decide is whether the prosecutor has proven Trump guilty of the charges against him, not whether someone not on trial who committed analogous offenses should have been prosecuted.

Putting selective prosecution aside, the problems with pressing the Hillary precedent — like the broader argument that the Biden Justice Department is so politicized its indictment of Trump is illegitimate — is that it is unworkable and gets the problem exactly backwards.

I’ve already had a ton to say about the Hillary precedent (see, e.g., here, here, and here). Plus, Noah and Charlie did a great job of covering its ramifications from their different perspectives. (They referred to it as the “Comey Precedent” because the rationale that “no reasonable prosecutor” would have indicted Clinton was articulated by then-FBI director James Comey at his now infamous press conference on July 5, 2016.)

The Hillary precedent is unworkable because if we accept it as a rule guiding all future exercises of prosecutorial discretion, then no one high-ranking government official could ever be charged again for classified-information violations, even if they could have catastrophic consequences for the country. That would be untenable.

The country can’t be protected if we can’t keep secrets. Criminalizing the exposure of secrets is thus essential to national security. And not just the willful exposure of secrets in the traditional espionage context — i.e., spying against the country. Notwithstanding what we invariably hear from the apologists of powerful officials who violate the law (e.g., Clinton, Trump, Petraeus, Berger, Deutsch, Pence, Biden, et al.), it is specious to assert that mishandling classified documents should not be a crime absent proof of intent to harm the United States.

First, it is a crime — Congress has made it one. Second, the trusted access top officials are given to national-defense secrets is conditioned on their promise to safeguard them within the rules, which are well known, and which they are trained to follow. Each official given a security clearance is made to understand that it is a crime to fail to honor their obligation — no one is being sandbagged. Third, the behavior of the officials involved in these is often willful; individual instances of mishandling intelligence may be negligent, but these instances are made nigh-inevitable by blatant misconduct (in Clinton’s case, intentionally setting up a non-secure private communications system for government business; in Trump’s, intentionally hording defense secrets and mulishly refusing, for well over a year, lawful demands that they be returned). And fourth, lower-level executive and quasi-executive officials — military and intelligence officers, as well as defense contractors — routinely get prosecuted and imprisoned for violating the law. There is no good reason to immunize high officials, whose recklessness can cause more damage.

I have no hesitation saying this because I have been consistent over the years. I thought Hillary Clinton should have been prosecuted, and I even argued she could be impeached because her conduct was disqualifying. I inveighed against the sweetheart plea deal given to David Petraeus, arguing that it should have been a felony prosecution. As I contended in the first post of this series, Smith has overcharged the case, but there is nothing objectionable in principle about a felony prosecution of Trump.

But of course, we can’t have unilateral disarmament either. It is intolerable to have a situation in which Democrats exploit the government’s law-enforcement and intelligence apparatus for partisan advantage, using it punitively against their adversaries while shielding their own side from prosecution; whereas Republicans are expected not only to play by the no-politicization rules but to accept that Clinton gets a pass while Trump gets hammered.

The Hillary non-prosecution bell cannot be un-rung. It was wrong when it happened, but what’s done is done. The statute of limitations has lapsed, and the Obama-Biden Justice Department made such a mockery of the investigation with immunity deals and other irregularities that the prospect of a successful prosecution was not merely foregone, it was insidiously undermined.

That said, we humans all make mistakes and exercise poor judgment on occasion. It cannot be that, having made a bad decision, we are obliged to make the next logical bad decision because of precedent. Even in jurisprudence, stare decisis (the doctrine of following precedent) is a prudential guideline, not an immutable law that forbids course corrections. It can’t be that, because prosecutors allowed Hillary to escape the noose, they have effectively repealed Congress’s national-security statutes, at least for the category of politically-connected offenders.

As I said above, the Hillary precedent gets things backwards. Yes, we have a double-standard, but the flaw in it is that Hillary should have been prosecuted, not that Trump has been indicted. The cure for this is to demonstrate, in a convincing way, that henceforth we are committed to a single standard of justice, applicable to both political sides, and to the powerful as well as the powerless.

How to do that? Well, as I just argued in a New York Post op-ed, we have the fortuity, while Trump is being prosecuted, of a simultaneous investigation of President Biden for his apparent decades of recklessness in mishandling classified information, in addition to an investigation of the Biden family’s influence-peddling scheme. If the prosecution of Trump is to be legitimate in the eyes of a strong majority of the country, then there must be a compelling demonstration that the Biden investigations are being pursued seriously, and that there will be prosecutions if the evidence indicates that crimes were committed.

So far, all indications are to the contrary. That is not acceptable. But it is also capable of being remedied.

As I argued in the Post, Congress should require the Justice Department and the FBI to provide as to Biden, in public, exactly the same kind of detailed information the Trump indictment outlines regarding the Mar-a-Lago documents: How many classified documents did Biden possess in unauthorized locations? What general subject matters do the documents cover? As to each individual document, what is the gist, the classification level, and the time frame of Biden’s possession?

There is no valid reason for the Biden Justice Department and FBI to withhold this information. They have decided that it could be disclosed in Trump’s case without harming national security, so they should not be heard to complain that national security requires suppression in Biden’s case. What’s more, Biden has claimed he has been totally cooperative, and we must presume he is not going to intimidate witnesses, much less flee. Ergo, the FBI and the DOJ cannot credibly say that disclosing this information would compromise an ongoing investigation.

Beyond that, how is it that Attorney General Merrick Garland has failed to appoint a special counsel for the Biden family influence peddling-investigation and the related probe of Hunter Biden’s alleged crimes? Given that, when Smith was appointed as the special counsel for Trump, he was given not only the Mar-a-Lago documents probe but also the pending January 6 investigation, how is that when Garland appointed Robert Hur for the Biden documents probe, Hur was not also assigned to take over the Biden family corruption case?

In the Trump situation, there was no conflict of interest that would have prevented the Biden Justice Department from investigating Trump, as it had been aggressively doing for nearly two years prior to Smith’s appointment. Instead, for political reasons, Garland did not want Biden and the Biden DOJ to be seen as prosecuting Biden’s political opponent when that opponent was going to make a campaign issue out of it. By contrast, there is a raging conflict of interest in the Biden DOJ’s investigation of Biden family corruption. It is the classic case for appointment of a special counsel.

Garland’s failure to appoint one, and the media-Democratic complex’s silence in the face of what should be a scandal in that regard, is a perfect example of why Trump supporters, and even many other people of good will who have no use for Trump and don’t want him to be president again, no longer believe we have a legitimate justice system.

That is why the other contention being made by the most ardent Trump supporters, the most dangerous contention, is that the Biden Justice Department, like its Obama-Biden forebear, is so pervasively politicized that its prosecutions are illegitimate — all of them. For now, I sense this argument is rhetorical. I haven’t heard Donald Trump or his base argue that the prison doors should swing open because everything the FBI and the DOJ do is tainted, and therefore no prosecution is credible. But if the political class thinks that it can persist in an unabashedly two-tiered justice system, and that the docile masses will just go along, it is playing with fire.