No, the FBI's Trump investigation is not just like the Hillary Clinton email probe. Here's why

A review of government documents suggests there are key differences.

ByMike Levine via ABC logo
Wednesday, August 31, 2022
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The Justice Department called on a federal judge to reject the former president's request and released evidence of highly classified material they found.

As more details emerge about why the FBI decided to raid former President Donald Trump's Mar-a-Lago estate earlier this month, both Trump and his allies are increasingly suggesting the FBI is treating him differently than it treated Hillary Clinton, who avoided charges for her use of a private email server as secretary of state.

"James Comey read off a list of all ... Hillary Clinton's crimes, only to say that no reasonable prosecutor would prosecute," Trump said of the former FBI director in a social media post this past weekend.

But a review of government documents from both investigations suggests there are key differences between the evidence uncovered in Clinton's case and the evidence already publicly documented in the Trump investigation.

Comparing classified info

Some of Trump's allies claim that the way Clinton allegedly mishandled sensitive information was -- as one pundit put it -- "a lot more serious" than the way Trump allegedly did.

Just on the surface, the number of items containing classified information is different. In the Clinton case, federal authorities identified "approximately 193 individual emails" that, when sent, contained some level of classified information, according to a 2018 report from the Justice Department's inspector general.

In the Trump case, federal authorities have identified more than 322 individual documents containing classified information that were kept at Mar-a-Lago: 184 "unique documents" containing classified information were retrieved early this year, another 38 such documents were retrieved in June, and then more than 100 more documents marked "classified" were found during the FBI raid on August 8, according to Justice Department filings in court.

In Clinton's case, the most sensitive "top secret" information on her servers was deemed by authorities to be "relevant to" and "associated with" a tightly-guarded "Special Access Program" -- and the inspector general said that "investigators found evidence of a conscious effort to avoid sending classified information, by writing around the most sensitive material."

"It's not unusual for folks with clearances to sometimes discuss classified matters in unsecure settings," said Tony Mattivi, a former federal prosecutor who coordinated the Justice Department's counterintelligence and counterterrorism cases in Kansas. "You can't always be in a secure room when you need to talk to some people or do certain things, so the way you do that is talk around the classified part. ... But that's very different than possessing classified material."

In contrast, federal authorities have recovered from Mar-a-Lago more than 100 "unique documents" marked "secret" and dozens of other documents marked "top secret," including "Special Access Program materials," according to the Justice Department and National Archives. Some of those documents marked "classified" were found inside Trump's desk in his office, the Justice Department said.

Accordingly, there "is a meaningful distinction" between Trump's alleged handling of classified documents and what the Justice Department's inspector general says transpired in the Clinton case, according to Mattivi, a Republican who recently lost a primary race to become attorney general of Kansas.

Where's the evidence -- literally?

In accusing the FBI of treating Trump and Clinton differently, Trump's allies have publicly noted that -- even though Clinton potentially compromised classified information -- "we didn't raid her home," as Trump's former CIA director, Mike Pompeo, recently put it.

But in his report on the Clinton matter, the Justice Department's inspector general made clear that federal investigators in that case were able to obtain the materials at issue -- Clinton's private email servers and the emails themselves -- without raiding her home.

"Where possible, it is standard practice to seek less intrusive means as an alternative to a search," Attorney General Merrick Garland said in a statement after the raid on Trump's estate.

As described in the inspector general's report on the Clinton matter, "the FBI obtained more than 30 devices" from Clinton and her aides, and "received consent to search Clinton-related communications on most of these devices." Among those 30 devices were two of Clinton's three private email servers, after the third server had been "discarded" years earlier "and, thus, the FBI was never able to access it for review," the inspector general's report said.

In Trump's case, the evidence at the center of the ongoing investigation was still being held at Mar-a-Lago, even after a federal grand jury subpoena three months earlier instructed that "any and all documents" marked "classified" be turned over.

Trump's lawyers have emphasized that "documents were provided" to the FBI in response to the subpoena, but in a court filing Tuesday, the Justice Department said, "Through further investigation, the FBI uncovered multiple sources of evidence indicating that the response to the May 11 grand jury subpoena was incomplete and that classified documents remained at Mar-a-Lago."

"The government also developed evidence that government records were likely concealed and removed from the Storage Room at Mar-a-Lago and that efforts were likely taken to obstruct the government's investigation," the Justice Department said.

What's the intent?

The final decision over whether to charge Trump or his aides may rest on what prosecutors find about their intent in taking documents marked "classified" to Mar-a-Lago and then rebuffing the U.S. government's efforts to reclaim those documents.

Publicly-released portions of the affidavit used to support the FBI raid of Mar-a-Lago say that the FBI is investigating, among other potential crimes, whether Trump engaged in the "willful" mishandling of documents or information relating to the national defense, as defined by section 793(e) of U.S. code 18.

Federal prosecutors looked at the same statute when contemplating charges against Clinton and her aides for the classified information found on her private email servers.

To charge any of them with violating 793(e), prosecutors would have had to prove beyond a reasonable doubt that Clinton or her aides acted "willfully" and "with the intent to do something the law forbids," the Justice Department's inspector general said in its report on the case.

Prosecutors determined that the evidence and facts of Clinton's case showed "a lack of intent to communicate classified information on unclassified systems," especially since "none of the emails Clinton received were properly marked to inform her of the classified status of the information," and investigators found evidence that Clinton and her aides "worded emails carefully in an attempt to 'talk around' classified information," according to the inspector general's report.

"There was no evidence that the senders or former Secretary Clinton believed or were aware at the time that the emails contained classified information," prosecutors concluded, according to the inspector general.

So prosecutors decided "there was no basis" to charge Clinton or her aides, the inspector general said.

That decision "was consistent with the Department's historical approach in prior cases under different leadership," the inspector general said, noting his office "found no evidence that the conclusions by the prosecutors were affected by bias or other improper considerations."

Nevertheless, in his controversial July 2016 press conference announcing the FBI's findings, Comey said that -- despite a lack of sufficient evidence to bring charges -- Clinton and her aides were still "extremely careless" in handing "very sensitive, highly classified information," noting that "none" of the emails they sent "should have been on any kind of unclassified system."

Responding to those remarks while still on the campaign trail, then-candidate Trump insisted Clinton was "so guilty" but the FBI "let her off the hook." He has since repeated those claims.

In the latest case targeting Trump, it's unclear what -- if any -- evidence the FBI has uncovered relating to the intent of Trump or his aides in allegedly keeping hundreds of documents marked "classified" at Mar-a-Lago.

But since the FBI's raid at Mar-a-Lago, Trump and his team have claimed that, while still in office, Trump issued "a standing order that documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them." And Trump has said on social media that the documents at Mar-a-Lago were "all declassified."

Mattivi said the idea of a "standing order" declassifying swaths of documents "is preposterous."

"Because there is a process, and part of the process involves the originating agencies knowing what's being done with their information," he said.

In its court filing on Tuesday, the Justice Department said that in January, when providing an initial set of documents to the National Archives, and even as recently as June, when providing the FBI with a limited response to the grand jury subpoena for classified documents, neither Trump nor his legal team had claimed the documents were declassified.

Records 'torn up' by Trump

According to the redacted affidavit released in Trump's case, the FBI is also now investigating whether Trump or his aides may have violated a federal law that criminalizes the "willful" concealment, removal or mutilation of federal records.

In 2016, federal prosecutors contemplated charging Clinton or her aides for violating the same law -- Section 2071 of U.S. Code 18 -- after more than 30,000 emails, which her legal team erroneously deemed personal in nature, were deleted from a server.

"The purpose of this statute is to prohibit conduct that deprives the government of the use of its documents, such as by removing and altering or destroying them," the Justice Department's inspector general said in his report about the Clinton investigation.

Witnesses in the Clinton case told investigators they "expected that any emails sent to a state.gov address would be preserved" -- and many of those emails were acquired from other devices -- so "there was no evidence that Clinton or anyone else" intended to conceal, remove or destroy the emails from government systems, the inspector general said.

In addition, federal prosecutors concluded that, unlike the electronic communications underpinning Clinton's case, "every prosecution under Section 2071 has involved" the "physical removal" or destruction of a document, the inspector general said.

Federal authorities now suggest Trump's actions might fit that mold.

In January, after a months-long effort to retrieve government records from Trump, the National Archives publicly released a statement saying "some of the Trump presidential records" it received from Mar-a-Lago "included paper records that had been torn up by former President Trump." The National Archives then referred the matter to the Justice Department, flagging that it could constitute a violation of Section 2071, the Justice Department said in its Tuesday filing.

'The biggest difference'

Mattivi said that the difference in the two cases comes down to what's known versus what's not.

"The biggest difference right now between Hillary Clinton and Donald Trump" is that with Clinton, "we know there was no prosecution -- that ship has sailed," said Mattivi.

"With Trump, we don't know what's going to happen," Mattivi said.