Should the "Hillary Clinton rule" apply to Trump?
And what would application of that rule entail?
Ed Morrissey points us to two articles by sharp analysts arguing that the “Hillary Clinton rule” for dealing with record mishandling cases against political leaders should apply to Donald Trump’s mishandling of records. The articles are by Alan Dershowitz, a liberal who tends to defend Trump’s actions, and David French, a conservative who normally rips Trump.
The notion that the law should treat similar situations similarly ought to be beyond dispute. However, at this stage we don’t enough about the facts of Trump’s case to say with confidence that his situation is truly similar in material respects to Hillary’s.
Ed points to differences that cut in Trump’s favor:
Hillary Clinton transmitted classified information, including Top Secret-Compartmented data, for four years over a completely unsecured server and did so with the intent to avoid records requirements. The risk of exposure was exponentially higher in Hillary’s case, and the malice of avoiding accountability with the use of a personal server rather than the State Department’s official system much more obvious.
It’s possible that when we learn more facts — about the exact nature of the documents Trump took and would not give back (were some of them really “nuclear documents” and if so, in what sense?), about how the documents were maintained by Trump, and about the level of Trump’s alleged cooperation with the government — differences between his situation and Clinton’s might emerge that cut against Trump.
I should add that there’s one difference between Trump and Clinton that should not matter, but might with this administration. It’s almost inconceivable that the Justice Department could have caused a jury to convict Hillary. It’s quite possible that it could secure a conviction of Trump — facts be damned — from a D.C. jury, for example.
Assuming the two situations — Clinton’s and Trump’s — actually are substantially similar on the facts, then of course they should be treated similarly. The “Hillary Clinton rule” should apply and Trump should not be prosecuted for taking and holding the documents.
But there’s a more to the “Hillary Clinton rule” than just the decision not to prosecute her. Although the Justice Department declined to prosecute Clinton, it laid out the case against her in a very public statement.
Readers will recall that James Comey, the FBI director, basically seized the matter from Attorney General Lynch, decided not to prosecute Clinton, but made a public, televised statement that strongly criticized her conduct. Comey thereby violated the DOJ’s policy of “doing its speaking in court” — that is, either prosecuting suspects or declining to prosecute them without comment.
Comey took heat from both sides. Republican partisans accused him of putting Clinton “above the law.” Partisan Democrats attacked him for violating the DOJ-speaks-only-in-court policy.
I was more sympathetic than most with Comey’s quest for a middle ground in the Clinton matter. Prosecuting Clinton, the Democratic presidential nominee, for what was essentially a technical violation, albeit of important laws, arguably would have intruded too deeply into the political process. But walking away from the case without comment would have deprived voters of important information and given Clinton a full pass she didn’t deserve.
Clinton wasn’t an ordinary criminal suspect. Her status as her party’s candidate for president arguably weighed against indicting her for conduct that violated the law but apparently didn’t cause actual harm to anyone. But the fact that she was seeking the nation’s highest office arguably weighed against keeping the public in the dark about her flirtation (at a minimum) with Espionage Act violations.
Whatever one thinks of Comey’s handling of Hillary Clinton’s case, applying the Clinton rule in full would mean laying out the DOJ’s basic case against Trump to the public. Again, though, the Clinton rule should apply only if the facts of the cases are sufficiently similar to warrant its application.
It’s not clear whether Trump would be injured by having Merrick Garland, Christopher Wray, or some other DOJ official lay out the facts of his mishandling of classified and/or national security-related documents. It’s not even clear how much Comey’s statement hurt Clinton. I think the conventional wisdom is that, if anything harmed Clinton, it was his reopening of the matter later on, after new documents came to light.
The Justice Department has lost enough credibility since 2016 that its pronouncements on matters with political overtones might not be taken seriously by many. And keep in mind that in 2016, Comey was regarded as a non-partisan figure, having served in the Bush administration. His feud with Trump was still in the future. Merrick Garland claims to be apolitical, but I doubt anyone outside of his family and circle of friends takes this self-serving claim seriously.
There’s no point in speculating further about this. We don’t even know yet whether the facts of Trump’s case support applying the Hillary Clinton rule.
But if they do and the rule is applied, Trump can expect the full Hillary Clinton treatment, not just the non-prosecution part.
Hillary's crime was not a "technical violation." She set up and used her own server in order to keep private her shakedown of contributors to the Clinton Foundation. Then she destroyed the evidence of her shakedown. As a criminal defense lawyer, I represent people who took cars just to ride around in them a little bit; they were charged with UUV (unauthorized use of a motor vehicle). Others took or stole cars in order to use them to commit other crimes--drugs sales, drive-by shootings, kidnappings, homicides. Hillary's conduct falls into the second category: she committed one crime in order to facilitate another. Comey's recitation of her conduct was completely improper and I believe it fatally wounded her candidacy. My hunch is that Comey wanted to show that his bureau, the FBI, did a real investigation, not a whitewash, even though he knew the Obama DOJ would never indict her. It, not the FBI, convenes grand juries and controls charges emanating from them. He, in my view, wanted to keep the administration from stating that the investigation cleared her. The fancy footwork he did (apparently at Peter Strzok's suggestion) was to change the element of the offense to "extremely careless," which does not imply a duty or obligation, from "grossly negligent," which does. This is basic tort law from the first year course in law school. I believe that without Comey's intervention, she likely would have won the election. That doesn't mean this was an unfair or unjust result: it was her criminal conduct (first revealed by the the New York Times) that set in motion the investigation that led to Comey's exposition of her crimes.