In a sit-down interview with Fox News’ Bret Baier on Monday night, former President Donald Trump reiterated his claim that he’s being unfairly persecuted by his political adversaries for retaining classified documents. Meanwhile, other leaders like President Joe Biden, former Vice President Mike Pence, and then-Secretary of State and Democratic presidential nominee Hillary Clinton are allowed to walk away scot-free after engaging in similar behavior, Trump claimed, calling it a “double standard.”
This is a defense he’s used numerous times to discredit accusations against him by painting himself as the victim of a “witch hunt” by the Democrat-controlled “deep state” to take down the Republican frontrunner – a deep state that also ignores or covers up misdeeds committed by Biden, members of Biden’s family, and other former officials.
A solid majority of Republican leaders and voters (as well as more than half of independents) buy into this narrative, calling Trump’s latest indictment “politically motivated,” characterizing the US justice system as “two-tiered,” and accusing the Biden administration of “weaponizing” the Justice Department against conservatives in order to “steal” the next election. Most Republicans believe Biden is guilty not only of the same crimes Trump is accused of but also of corruption – and that the FBI is looking the other way.
Does this double standard really exist? Or was Trump’s behavior so extraordinary as to warrant criminal charges while the other cases didn’t?
Let’s look at the facts of each classified documents case and decide.
The Trump case
In May 2021, employees at the National Archives and Records Administration realized they were missing records from the Trump administration belonging to the US government and asked the former president to return them.
After nearly a year of denials, negotiations, and delay tactics, Trump eventually turned over 15 boxes containing 184 classified documents that had been illegally taken from the White House and stored at his private club/home/office in Mar-a-Lago.
Concerned that he was still withholding some material with national security implications, handling it carelessly, and misleading them about it, NARA asked the FBI to step in. As a result of the FBI investigation, which corroborated NARA’s suspicions, the Justice Department secured a grand jury subpoena in May demanding the return of all remaining material in Trump’s possession.
Trump then proceeded to ignore and obstruct said subpoena, despite being repeatedly urged by his advisers to comply.
In June 2022, DOJ officials paid a visit to Mar-a-Lago, where they were handed 38 more classified documents along with a sworn statement signed by Trump’s lawyers promising that all sensitive material had been turned over. However, investigators had collected enough evidence to doubt the veracity of that affidavit, including security footage from Mar-a-Lago corroborating the testimony of Walt Nauta – a former White House valet turned body man who told agents the former president had personally tasked him with hiding boxes from investigators and lying to his own lawyers about it.
That August, the FBI executed a warrant to search Mar-a-Lago, where they found an additional 103 classified documents, reportedly including “highly sensitive” material about foreign countries’ military and nuclear capabilities.
In total, 60 of the 325 classified items recovered were marked top secret. Days after Trump formally announced he’d run for president in 2024, Attorney General Merrick Garland appointed special counsel Jack Smith to oversee the investigation into Trump given the “extraordinary circumstances.”
Earlier this month, a South Florida grand jury indicted Trump on 37 criminal counts carrying potential prison sentences, including willful retention of national defense information, conspiracy to obstruct justice, and false statements and representations – the first time in history a US president has been federally indicted (but most assuredly not the last). At his arraignment on June 13, Trump pleaded not guilty to all charges. The trial is set to begin on August 14.
The Biden case
In November 2022, President Joe Biden’s personal attorneys conducted a voluntary search of the president’s spaces and found a total of 16 classified documents from his time as vice president – six in a storage space at his home in Wilmington, Delaware, and 10 in a locked closet in an office he formerly kept at a University of Pennsylvania center in Washington, DC. Biden’s team turned over the Obama-era documents (reportedly including “intelligence memos and briefing materials” about politically sensitive foreign countries) to the National Archives the next morning and submitted to consent searches. Garland then appointed a special counsel to investigate whether criminal behavior took place.
While the investigation is still ongoing, there is no evidence as of yet that Biden personally engaged in knowing and willful conduct to retain the documents, prevent their retrieval, or obstruct the investigation. Not that a sitting president can be indicted anyway (as special counsel Robert Mueller concluded after finding Trump may have obstructed justice during the Russia investigation).
The Pence case
When the news broke about Biden’s discovery, former Vice President Mike Pence searched his residence and found about a dozen classified documents, which his lawyers promptly reported and returned to the National Archives. Pence subsequently gave federal agents consent to search his home without a warrant, which turned up one more classified document. After a full investigation, the Justice Department uncovered no evidence of intent and declined to charge Pence for retaining documents.
The Clinton case
Seven years ago, Hillary Clinton was found to have used an unsecured, private email server located in her home to store about 60,000 personal and work emails. The FBI identified 110 email conversations among the roughly 30,000 work emails containing information that was likely classified at the time it was sent, including eight that contained top-secret information. Three additional email chains containing classified information were identified among the other 30,000 emails. There’s no evidence that any actual classified documents had been shared, and only one email had classified markings (whose significance Clinton was reportedly not aware of).
The FBI investigation concluded that Clinton and her team had been “extremely careless in their handling of very sensitive, highly classified information” and committed “potential violations of the statutes regarding the handling of classified information.”
Investigators did not establish clear intent to deliberately retain classified information and withhold it from the government. Based on an exhaustive analysis of all previous similar cases and the facts of the case in question, then-FBI Director James Comey famously determined that “no reasonable prosecutor” would bring criminal charges against Clinton, calling her behavior negligent but not willful.
No comparison, no double standard
Equal treatment under the law – one of the bedrocks of the rule of law – doesn’t require equal outcomes for different cases. In fact, the opposite is true. Every case must be judged on its own merits. While it’s true that other politicians have faced no legal consequences for retaining documents, Trump’s case is different in key ways that justify the extraordinary federal charges brought against him by special counsel Jack Smith.
Investigations about the retention of classified material always seek to do two things. First and foremost, recover the lost material. Second, figure out whether the retention constituted a knowing and willful violation of the law. In the vast majority of cases, including Biden’s and Pence’s, as soon as someone notices they have documents they shouldn’t, they simply turn them in. People with security clearances make mistakes like the rest of us. Having been remediated and accidental rather than intentional, this conduct often results in no criminal charges.
In Trump’s case, there is a mountain of evidence showing Trump’s personal intent to withhold and mishandle sensitive and classified documents – and to knowingly and willfully obstruct the government’s attempts to recover them. There really is no comparison with the behavior of Clinton, Pence, and Biden – none of whom defied a federal subpoena to turn over classified materials containing some of the nation’s most sensitive national security secrets and then tried to hide them from federal investigators and their own lawyers, as Trump is credibly alleged to have done. The case that comes closest is Clinton’s, but from what we know, Trump’s misconduct went far beyond hers.
In fact, given the political context and historical precedent, had Trump complied with any of the several requests to turn over the documents, it’s very likely he wouldn’t have been charged – just like Pence and Clinton weren’t charged and like Biden probably won’t be. However, given the facts as alleged, any other American would’ve been charged in much the same way as Trump regardless of their political status.
Two wrongs don’t make a right
In the view of Trump and his supporters, whether he’s innocent or guilty is beside the point – insofar as he’s being prosecuted by a Justice Department under the control of the opposing party for something others supposedly got away with, any case against him is automatically politically motivated and illegitimate, regardless of the facts, the evidence, and the law. Never mind that it was a grand jury in Republican-leaning Miami – not a politician, a prosecutor, or a bureaucrat – that indicted Trump.
The long-standing norm against politicized prosecutions is not a norm against prosecuting politicians – it’s a norm against prosecuting anyone based not on the merits of the case against them but on political considerations.
Declining to prosecute Trump for conduct that would get any other American charged solely because he happened to have served as president, he’s running for office in 2024, or others may have gotten away with similar stuff in the past would be the real miscarriage of justice.