Trump resorts to shaky legal precedents, citing Biden, Hillary Clinton, to denounce alleged double standards

The latest news from Miami promises to be one of the central motifs of the impending U.S. presidential campaign. Former president Donald Trump — who was arraigned Tuesday in a Miami courtroom on 37 charges related to the illegal handling of classified documents — argues that he’s the victim of a political witch hunt. His allies in the Republican Party have echoed his allegations almost verbatim, claiming that the Department of Justice has imposed double standards on the former president, treating him with undue harshness, while President Joe Biden and former secretary of state Hillary Clinton — both Democrats — were given a pass regarding their alleged errors in their handling of classified information.

None of the aforementioned cases, however, have much to do with each other. Trump also conveniently omitted the case of his former vice president, Mike Pence, which contradicts the argument of double standards being employed against Republicans. At Pence’s private Indiana residence, some classified documents related to his time in the White House were also found. He immediately admitted that he had taken them by mistake and returned them. The Department of Justice determined that Pence — now a candidate for the Republican presidential nomination, like Trump — had acted in good faith and hadn’t committed any crime. For this reason, the investigation into the former vice president was closed, with no charges filed.

However, despite Pence’s situation, the allegations made by Trump — who kept boxes of classified documents in his Mar-a-Lago mansion, which were ultimately recovered during a court-ordered search — appear to be gaining ground among his supporters. The former president remains the front-runner in the Republican primaries, according to all the polls. On social media, his core voters repeat Trump’s arguments over and over again. And leading figures within the GOP, including his main rivals in the race for the White House, have also come to his defense.

“Hillary [Clinton] had the emails,” said Florida Governor Ron DeSantis at a campaign event. “Is there a different standard for a Democratic secretary of state versus a former Republican president? I think there needs to be one standard of justice in this country.” DeSantis is Trump’s main rival in the Republican primaries.

It doesn’t seem to matter that Trump’s comments are inaccurate, even bordering on slander. Three days ago, on his social media network Truth Social, he wrote: “Hillary [Clinton] and Biden were not Indicted. Hillary destroyed 33,000 emails with BleachBit, and smashed her phones with a hammer. Biden was even worse, but they didn’t get Indicted and, unlike them, I never gave a foreign power anything. Biden probably did. He gave to China because China gave him a lot of money?” In other posts — embellished with his heavy use of capitalization and exclamation marks — Trump accuses the current occupant of the White House of keeping 1,850 boxes of secret documents at the University of Delaware.

Trump’s argument mixes apples and oranges. The number of boxes is referring to what President Biden donated to his alma mater, and they contain documents that pertain to his 36-year-long career as a senator. Under U.S. law, this material is considered to be private property: it can be freely transferred by its owner. Investigators have also gone through said documents, finding no evidence that they contain any secret material from Biden’s time (2009-2017) as Barack Obama’s vice president.

It’s true that Biden, like Trump, is under investigation by a special counsel from the Department of Justice, Robert Hur. This prosecutor’s team is examining various classified documents that were discovered at Biden’s private residence in Delaware and in his private office in Washington — which he occupied after leaving the White House — between October 2022 and January 2023.

While the case is still open, from the outset, the incumbent president and his lawyers have assured the public that they are collaborating with investigators, allowing the Department of Justice full access to all sites that could be related to the matter. All materials that have been found have been returned to the authorities. There is no indication that the president or his aides intentionally withheld on to confidential documents. This requirement — that of intent — is essential to determining whether or not a crime has been committed.

“If Trump had done the same [and had returned the papers when they were requested by the National Archives], there would have been no grand jury, there probably would have been no search warrant, and [he] probably would have avoided potential criminal trouble,” former Watergate prosecutor Nick Akerman told ABC News.

U.S. law requires presidents and vice presidents to keep all official documents received during their terms and, upon leaving office, turn them over to the National Archives for safekeeping. To keep any documents, they must request a special permit and offer up their reasoning for not wanting to turn them over. However, it’s not uncommon for some documents to be misplaced, though they are typically returned when found.

Hillary Clinton’s case has already been closed for several years. In 2016, when the former secretary of state was the Democratic candidate against Trump, she faced one of the greatest controversies of the electoral campaign. During her time in president Obama’s administration, she had used a private email server for her formal communications. In 2015, U.S. intelligence agencies alerted the FBI that her server potentially had hundreds of messages containing classified information.

Investigators determined that of the nearly 30,000 emails on the server, 110 included in 52 email threads contained classified information. The case was closed in July 2016, with no charges filed. Although, it was reopened 11 days before the presidential election, after the FBI found another batch of messages. Once again, all charges against Clinton were dismissed.

Back then, at the height of the electoral campaign, Trump launched into long rants at his rallies, warning about the importance of properly preserving state secrets and confidential documents. Special Counsel Jack Smith — who is leading the investigation into the case of the former president’s Mar-a-Lago papers — has cited these remarks to reinforce his accusations against the former president, who is facing 37 charges in relation to seven federal crimes.

This is the big difference between the cases: Smith sees that the former president intended to keep secret documents at his private residence in Florida. The special counsel is accusing the former president of obstruction of justice and of having violated the Espionage Act, for attempting to keep the documents in his possession despite repeated requests by the National Archives to return them.

The charges indicate that the documents kept by the former president are marked as classified, with some of them marked as “top secret.” There is also a recording of Trump — made six months after he left the White House — where he acknowledges that a piece of paper in his hand is classified: “As president, I could have declassified it... But now I can’t,” he comments, according to the transcript included in the 49-page indictment filed by the Department of Justice.

For now, Trump is continuing his strategy of presenting himself as a victim of the system. His claims of political persecution are generating significant donations and political attention for his presidential campaign. Just three hours before his appearance in a Miami courtroom, he put out one of his characteristic messages on Truth Social: “Will Deranged Jack Smith be looking at the thousands of pages of documents that Biden had in Chinatown then, when caught, quickly sent up to Boston? What about the 1,850 Boxes that Biden is fighting to keep secret. How about Hillary’s 33,000 emails that she deleted and acid washed? Will he be looking at the $5,000,000 bribe that was paid to Biden but that the Justice Department is trying to hide?”

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