Photo by BS d'Avalonia on Unsplash

If there’s anything that years of studying law and philosophy have taught me, it’s that we cannot trust our intuitions. Usually, those things which seem most obvious are in fact least so. And for all the vaunted praise it receives, common sense often reflects nothing more than the lowest common denominator of intellectual effort.

These are the thoughts coursing through my mind whenever I see people trying to dismiss the recent indictment of Donald Trump as nothing more than a political hit job. But Biden kept classified documents too! Hillary Clinton kept classified documents on a private server, then deleted thousands of emails!

It’s “obvious” that these cases are the same. It’s “common sense” that if Trump is being prosecuted, but Biden and Clinton weren’t, then the fix must be in. The “deep state” is out to get Trump. Maybe he’s guilty, but so were they, and their unequal treatment just goes to show how politicized the justice system has become, right?

Wrong.

Let’s put these canards to rest, shall we? To do that, let’s actually familiarize ourselves with the relevant law and the facts of each case.

The law

Thirty-one of the thirty-seven counts in the Trump indictment accuse him of “willfully retaining” classified documents “relating to the national defense,” in violation of 18 U.S.C. section 793(e), and knowingly retaining classified documents “with the intent to retain such documents or materials at an unauthorized location,” in violation of 18 U.S.C. section 1924(a).

Hillary Clinton was also accused, though never indicted, of violating 18 U.S.C. section 1924(a).

It’s also been suggested that Joe Biden violated the same statute as Clinton, though he has not faced the same level of scrutiny or barrage of accusations that Clinton faced, and we’ll discuss some of the reasons why in a moment.

The other counts in the Trump indictment accuse him of lying to federal agents and obstructing an investigation. Neither Clinton nor Biden were ever alleged to have engaged in deceit or obstruction, at least not by the officials who investigated their alleged misconduct.

The Clinton case

Beginning in 2009, then-Secretary of State Hillary Clinton and her staff communicated using email accounts that were hosted on a private server located in Clinton’s home in New York. Clinton was apprised that this was less secure than using a server owned by the federal government but elected to continue her established practice.

The use of private email addresses to conduct government business is not prohibited by federal law, as long as official records are preserved and transferred to the appropriate agency. Prior Secretaries of State like Colin Powell had also used a private email address and private server. Indeed, many members of the second Bush administration used a private server owned by the Republican National Committee for government work.

When knowledge of Clinton’s private server came to light, she was ordered by investigators to turn over any emails relating to her work as Secretary of State. She produced 55,000 printed pages, containing 30,000 email chains. According to Clinton, she did not believe she sent or received classified information through her private server, and ordered her attorneys to err on the side of disclosure. Approximately 33,000 other emails deemed “personal” were not produced, and were subsequently deleted.

Of the 30,000 emails Clinton turned over, a little over one hundred were found to contain classified information.

The main legal claims against Clinton centered on (1) her retention of classified documents on her private server after leaving office, and (2) the deletion of the 33,000 emails she claimed were private in nature, which Republicans accused her of doing in order to cover up misconduct relating to the incident in Benghazi, Libya.

At the conclusion of his investigation into Clinton and her emails, FBI Director James Comey declared that

Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.

In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.

As for the deleted emails specifically, the FBI was able to recover some using digital forensics analysis, or by cross-referencing with the individuals with whom Clinton was communicating. But while some of those deleted emails did relate to government work, the FBI found no evidence that they were “intentionally deleted in an effort to conceal them.” Nor did they find any evidence of “intentional misconduct in connection with” the effort to sort personal from business emails.