The editors of the Wall Street Journal take note of the conundrum in which AG Merrick Garland finds himself:
We don’t know everything about the documents Mr. Trump retained, how he handled them, what he told the FBI and other facts that are still hidden by the redactions in the affidavit. New details may emerge that differ in significant ways from Mrs. Clinton’s behavior.
But that isn’t evident so far, and Mr. Trump’s lawyers will surely argue that under the PRA he has some right to hold documents, even many that are classified, for some period of time or some personal purpose.
That is accentuated by the reality that former presidents generally receive more deference than secretaries of state do.
Consequently, Mr. Garland may decide to follow the precedent established by James Comey which will be seen by many Democrats as caving in to Trump, he may decide not to follow that precedent at all which will be seen by many Republicans as proof positive of a virulently partisan DoJ and FBI, or he might indict Donald Trump and Hillary Clinton for mishandling of public records and improper retention of classified materials.
IMO that last alternative is very far-fetched but one can always dream, can’t one?
As I’ve said before I would prefer it if searching the residences and private offices of former presidents for official records and classified materials were completely routine. That would eliminate charges of political partisanship.
Dave Schuler: he might indict Donald Trump and Hillary Clinton for mishandling of public records and improper retention of classified materials.
Clinton did not commit an indictable crime. To indict her would require showing she knew there was information in her emails relating to the national defense which would damage the U.S. if disclosed. None of the classified information was properly marked. She used the secure system extensively. The situation has all of the hallmarks of ubiquitous “leakage”, whereby classified information so often makes its way into unsecured communications.
To successfully charge Trump, they have to show he knew—which he did. He was told, in writing, repeatedly, that he had government records, including classified documents. He may very well have his fingerprints on documents marked classified. He can pretend he declassified the files, but that doesn’t matter under the Espionage Act.
I think Trump’s main problem will be obstruction of justice and not the other stuff.
The Sandy Berger precedent, I think, is a better comparison than Hillary Clinton. Berger actually stole classified records from the archives itself and got a slap on the wrist.
What documents did Clinton have? I know there were some emails. IIRC the classified documents were messages to Ambassadors that were already made public so why would they have searched Clinton? AFAICT Clinton was not holding back documents 1 1/2 years after she was asked to give them back.
Steve
Hillary Clinton’s mishandling of classified documents was indictable—James Comey said as much in his statement. He elected NOT to indict which may well have been the correct decision. The distinction he went on to make was between indictable and convictable.
I agree. In addition I think that Congress should take steps to clarify and tighten up the Presidential Records Act.
“What documents did Clinton have? I know there were some emails.”
We don’t know for sure as they were never released. Leaked news reports indicate that some of them involved approving drone strikes in Pakistan, which I think are credible based on what I know about how such operations actually work. But if you read the Mueller report, he describes several chains of SCI-level communications but doesn’t specify what they are about because they were classified.
There was also a lot of low-level classified material (confidential mostly), some of which State declassified and others which it formally classified. That isn’t as big a deal as the SCI stuff.
My understanding on the drone approval was that this affected a number of people, not just Hillary, as the process was clunky and since the approval was time sensitive they sometimes just did the quickest option. What I have never heard was that Clinton had boxes of documents somewhere, was asked forma hem back and refused.
“James Comey said as much in his statement.”
It was also a misdemeanor IIRC and it was 4 years out. It wasn’t turned into a felony until 2018, when Trump very publicly announced he was signing the change to make it a felony and they archives have been asking for these back since May 2021.
Steve
Steve
Clinton had an illegal, unauthorized server in a private home which the FBI felt plausible was breached. Espionage Act anyone?
She then bleachbit her hard drive, even after being subpoenaed, destroying thousands of emails. She destroyed cell phones and I think even lay tops by hammering them. Obstruction of justice, perhaps?
Where was the DOJ/FBI raid on her home? Oh yeah, there wasn’t one.
But, let’s get back to Trump who had docs locked up, per instructed, had secret service all around, and no known reason to believe these docs had been compromised. He also has staunchly stood by his statement of having those docs been declassified right before
leaving office.
Dave Schuler: Hillary Clinton’s mishandling of classified documents was indictable—James Comey said as much in his statement.
No. Comey said “no reasonable prosecutor” would bring such as case, because precedent was that intent must be shown.
More particularly, Gorin v. United States established that “scienter and bad faith” must be present.
steve: My understanding on the drone approval was that this affected a number of people, not just Hillary, as the process was clunky and since the approval was time sensitive they sometimes just did the quickest option.
Congressional testimony was that no particulars of whether or not a covert action would go forward were discussed, but it was common to email about the drone program without actually acknowledging the existence of the drone program—even though you could read about it in the New York Times. It wasn’t even necessarily against protocol, because secure networks were not always available.
Jan: Clinton had an illegal, unauthorized server in a private home which the FBI felt plausible was breached. Espionage Act anyone?
There was nothing illegal about the server, or about using email for non-classified information. Classified information wasn’t supposed to pass through email, not even if it is state.gov email. But it always does.
Jan: He also has staunchly stood by his statement of having those docs been declassified right before leaving office.
We await the evidence of declassification, but it doesn’t really matter. If an unauthorized person (such as Citizen Trump) knowingly keeps information relating to the national defense that could be harmful to American interests were it to become public, then it would be a violation of the Espionage Act.
Its emails. You know how those work right? Receiver and a sender? Can track back to see what was sent. AFAICT these are mostly made up claims anyway.
Trump? You know the warrant said nothing about classified documents?
Steve