Trump's rant against his likely indictment for obstruction of justice is rubbish.

However, there's a solid argument that Hillary Clinton engaged in similar obstruction in the 1990s.

In this post I argued that if the facts are as have been reported, then special counsel Jack Smith probably has a solid case of obstruction of justice against Donald Trump. And now, it looks like Smith will bring such a case.

Anticipating his indictment, Trump put out this statement:

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!

Trump’s use of all caps, his reference to “crooked Hillary,” and the obligatory claim of “witch hunt” will almost certainly be enough to satisfy Trump’s base and a goodly number of other Republicans that the former president is the aggrieved party in this matter. But if the indictment is for obstruction of justice, and not for possessing documents, then his rant is beside the point.

What the rant ignores is that in the instances Trump cites, neither Joe Biden, Bill Clinton, nor Hillary Clinton defied a subpoena — much less lied to their lawyers about the whereabouts of subpoenaed documents or shifted documents from room-to-room to evade production.

Reports suggest that Trump did all of these things (or had them done on his behalf). If the reports are true, then Trump likely obstructed justice and the misconduct Trump cites by others has little or no relevance to the case against him.

Andy McCarthy states a different, more plausible, case that an obstruction of justice indictment would give Trump “a strong political argument to make about our two-tiered justice system.” McCarthy makes this case by contrasting the way the Justice Department treated Trump’s lawyer, Evan Corcoran, and the way it treated Hillary Clinton’s lawyers during the investigation into her emails.

McCarthy demonstrates that during that investigation, the DOJ was far too deferential to Clinton’s lawyers. Indeed, he has argued that two of them should have been treated as suspects, rather than lawyers.

But Trump’s lawyer, Corcoran, falsely told Smith’s team that the 38 classified documents he was turning over constituted all of the classified material in Trump’s possession. The truth was that Trump retained more than 100 additional classified documents. As far as I know, none of Hillary Clinton’s lawyers made material statements to investigators that were shown to be false.

Prosecutors don’t take kindly to being fed false information by defense lawyers. Naturally, Smith and his team wanted to know why Corcoran provided false information. According to reports, what they learned from Corcoran is that Trump’s team gave him the false information and told him he didn’t need to inspect the office area where, it turned out, the former president kept a large number of classified documents.

This misdirection, coupled with the moving of documents from office to storage area on the eve of the DOJ’s visit to Mar-a-Lago, constitutes the “two-step” that likely will form the basis for an obstruction of justice indictment. As far as I can tell, Smith’s team did not behave improperly, or inconsistently with prior practice, in uncovering evidence of the obstruction.

There is, though, an old case that could be cited to show that an indictment of Trump for obstruction of justice would be inconsistent with past practice. That case involves Hillary Clinton — but not her emails; rather her billing records.

The case was part of the Whitewater investigation. I discussed it at length here.

For purposes relevant to obstruction of justice, the short version is that Hillary Clinton and two of her Little Rock law partners — Webb Hubbell and Vince Foster — improperly removed from their law firm billing records that documented her work for an ill-fated and corrupt project called Castle Grande.

When Ken Starr’s team subpoenaed the billing records, Clinton did not produce them. But later, a White House employee found them in the private quarters of the White House, just outside of Hillary’s office. When the documents were finally turned over, Hillary’s fingerprints were on them.

The billing records showed that, contrary to what she had maintained during the 1992 presidential campaign, Clinton billed time for work on Castle Grande, and was the billing partner for this representation. More than that, they showed that she and/or Hubbell performed legal services on every day in which federal prosecutors found criminal behavior by James McDougal (the moving force behind Castle Grande) and/or his cronies in furtherance of their unlawful conspiracy. This behavior included backdating documents and making phony loans.

In effect, the billing records placed Clinton and Hubbell at the scene of the crime.

Although Trump’s reported dealings with the DOJ smack of even more nose-thumbing than Hillary’s dealings with Starr, the facts of the two cases are quite similar. In both instances, documents sought by a prosecutor were withheld from production. In both instances, the documents were stored in or near the office of the person who was legally required to produce them. In both, the evidence demonstrates, or at least strongly suggests, a willful intent not meet this legal obligation.

Ken Starr indicted Hubbell for fraud which consisted, in essence, of concealing from federal agents and investigators the true role of Hubbell, his law firm, and Hillary Clinton in Castle Grande. He chose not to indict Hillary. Maybe Starr thought that indicting the First Lady would interfere unduly with the political process. Maybe he thought he couldn’t secure a conviction.

Indicting Donald Trump would interfere with the political process to a much greater degree than indicting Hillary Clinton would have. Trump, after all, is a leading candidate for president in next year’s race.

However, this doesn’t mean Trump shouldn’t be indicted. What Ken Starr decided to do (or not do) in the 1990s need not control what Jack Smith decides to do a quarter-of-a-century later. But it should cause Smith to consider very carefully whether to take the unprecedented and ominous step of indicting a former president and the current front-runner for the Republican nomination.

If reports about the measures Trump took to avoid compliance with Smith’s subpoena are true, then maybe the wanton disregard for the legal process justifies indicting Trump, even given the political implications of an indictment.

Trump would have primarily himself to blame. And the indictment would not amount to a witch hunt.