There are true things Trump could say supporting his claim he’s being selectively prosecuted. He should stick to those.
On Tuesday, we posted my column on former president Trump’s looming indictment by special counsel Jack Smith in the Mar-a-Lago documents caper. In it, I excerpted this statement that Trump posted on his Truth Social platform after his lawyers met with Smith at Main Justice:
HOW CAN DOJ POSSIBLY CHARGE ME, WHO DID NOTHING WRONG, WHEN NO OTHER PRESIDENT’S [sic] WERE CHARGED, WHEN JOE BIDEN WON’T BE CHARGED FOR ANYTHING, INCLUDING THE FACT THAT HE HAS 1,850 BOXES, MUCH OF IT CLASSIFIED, AND SOME DATING BACK TO HIS SENATE DAY [sic] WHEN EVEN DEMOCRAT SENATORS ARE SHOCKED. ALSO, PRESIDENT CLINTON HAD DOCUMENTS AND WON IN COURT. CROOKED HILLARY DELETED 33,000 EMAILS, MANY CLASSIFIED, AND WASN’T EVEN CLOSE TO BEING CHARGED! ONLY TRUMP — THE GREATEST WITCH HUNT OF ALL TIME!
I said in the column that I’d address Trump’s claims in a separate post. So let’s do that.
To begin with, Trump hasn’t been indicted . . . yet. As a result, we can’t say for certain what the charges will be, so comparing them to what he (mostly inaccurately) claims are analogous situations involving other presidents and Hillary Clinton is difficult. He is mainly focused on document-retention practices. As I have surmised a number of times, the case against Trump will surely be portrayed as mainly a case of obstructing the grand jury, not of unlawful retention of national-defense documents.
Smith, the special counsel chosen by the Biden Justice Department, will do that in order to distinguish Trump from Biden, who has also illegally hoarded classified documents but whom the Biden DOJ obviously will not charge. The administration and the media-Democratic complex will stress that Biden cooperated with the government’s investigation of his mishandling of intelligence documents, while Trump obstructed the government’s investigation of his.
If I am right that the Trump case will mainly be an obstruction case, then the most relevant comparison (as I explained in yesterday’s column) is to former Secretary of State Clinton, to whom the Presidential Records Act did not apply. Her suspected crimes — for which she was indeed given a complete pass — included the intentional destruction of digital files that she and her advisers knew were relevant to a congressional investigation of the State Department’s missteps in connection with the Benghazi massacre (on September 11, 2012). Trump is right to stress her case, in which the Obama-Biden Justice Department worked to shield her from normal investigative measures and prosecution — whereas the Biden Justice Department is being extraordinarily aggressive in its pursuit of Trump.
As for the rest of Trump’s diatribe, it’s off base, at best.
Trump is right that the Biden Justice Department is not going to prosecute Biden (DOJ guidelines forbid indicting a sitting president); and it is highly unlikely either that the appointed special counsel, Robert Hur, will recommend charges, or that a Republican-run Justice Department (if there is one in 2025) would prosecute a by-then-83-year-old former President Biden. As we observed earlier this week, the Biden Justice Department’s decision to drop the illegal document-retention case against former vice president Mike Pence was calculated to posit a rationale for not prosecuting Biden over the same crime.
It is true that, in 2012, Biden donated to the University of Delaware approximately 1,850 boxes of his files, mostly from his Senate years. There is no evidence at this point, however, that some of these materials — let alone “much” of them — include classified intelligence. The FBI and special counsel Robert Hur have been examining these materials. So far, there is no indication that they contain classified information. It’s certainly possible that they could find some (given that Biden has hoarded classified information in several other unauthorized, private locations). If they have found classified materials, or if they do in the future, we have to assume we’ll hear about it since we have learned about other classified documents that Biden retained in unauthorized locations.
Classified documents from Biden’s time in the Senate were found by the FBI when agents conducted a consensual search of the president’s Wilmington, Del., home on January 21, 2023. How many such documents were found has not been disclosed. But thus far, there is no indication that classified documents from Biden’s decades in the Senate have been found in other Biden locations.
Trump’s claim that President Bill Clinton hoarded presidential records and won in court is misleading. Clinton made recordings with historian Taylor Branch in anticipation of compiling an oral history of his presidency (published in 2009 as The Clinton Tapes: Wrestling History with the President). The tape recordings were not classified, and while he was president, Clinton stored some of them in what’s been described as a sock drawer in the White House, after which the watchdog group Judicial Watch tried to obtain them under the Freedom of Information Act. Obviously, this is far removed from the Trump situation, which involves classified files that were (a) retained in a private location after Trump was no longer president, and (b) then sought pursuant to a grand-jury subpoena.
Clinton did not win in court — he wasn’t a party to the lawsuit (Judicial Watch v. National Archives and Records Administration (NARA). At issue in the case was whether Clinton — again, while he was president — could properly designate the tapes as personal records rather than presidential records. The Presidential Records Act gives the president broad authority to do that, particularly with non-classified materials that the president himself generates as an aide-mémoire. Moreover, the PRA gives NARA no authority to countermand such a designation. The case thus provides no support to Trump. The hundreds of pages of intelligence agency reporting that he retained were not his personal property, and there is no evidence that, while he was president, he undertook to designate these documents as his personal property — which would have been an absurd thing to try to do.
On the positive side, Trump’s post indicates that the has retreated from a number of other whoppers he’s previously told about the handling of other presidents’ records — particularly that Obama, Clinton, and the Bushes had records moved to unsecure warehouses or (in Bush-41’s case) to a bowling alley and Chinese restaurant. Unlike Trump, these former presidents enabled NARA to take custody of the presidential records, as it is supposed to do. NARA then arranged for temporary storage facilities, under its supervision, while waiting for permanent presidential libraries to be arranged or built.
I imagine that Trump’s lawyers have explained to him that he is not serving himself well by publicly saying things that are not true about the disposition of presidential records. He is looking at a high likelihood of being charged with causing statements that were not true about the disposition of his presidential records to be made to the grand jury. These statements he has made on social media and in rally riffs would be admissible against him at trial.
The former president appears to have assessed that his best defense is to claim he is being selectively prosecuted. I suspect he’s right about that, but he ought to stick to the many true things he could say in support of that contention.