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What about Clinton’s emails? How Trump’s document controversy differs.

Republicans have complained that Trump could face legal jeopardy when Clinton was never charged. But applying the ‘Clinton standard’ reveals key differences.

Donald Trump and Hillary Clinton appear at a presidential debate in October 2016. (Melina Mara/The Washington Post)

The debate over what is to be done with Donald Trump and his alleged mishandling of sensitive government documents has landed in the zone where it was inevitably headed: whataboutism. Hillary Clinton escaped prosecution for using a private email server as secretary of state in 2016, the right argues, so why should Trump be indicted?

In this case, we use “whataboutism” non-judgmentally. Indeed, it might be fitting and instructive to compare the two situations, especially given that their central figures occupy similar positions in our national politics — as de facto figureheads of their parties who had access to highly sensitive information. A core principle of our justice system, after all, is that the law be applied equally.

But that doesn’t mean the two situations are the same or even particularly similar. Even as our understanding of why the FBI searched Trump’s Mar-a-Lago estate earlier this month remains incomplete, some key differences have emerged.

And applying the Clinton standard might not augur as well for Trump as proponents seem to believe.

As the situation has deteriorated for Trump, his allies and other conservatives have increasingly called for applying that standard. Sen. Lindsey O. Graham (R-S.C.) has suggestively warned that there would be “riots” if Trump is charged with mishandling sensitive information after “Hillary Clinton set up a server in her basement.” Trump attorney Jim Trusty said Monday on Fox News that he disagreed with how the Clinton standard was utilized in 2016, saying it “may not have been the most respectful precedent” — “but I’ll take it in terms of the result.”

The Wall Street Journal’s editorial board, meanwhile, argued this weekend that if Attorney General Merrick Garland can’t prove Trump’s conduct was worse than Clinton’s, then “the better judgment is not to prosecute and put the country through the trauma of a political trial that half of America will suspect is a case of unequal justice.”

But just how similar are the two situations? It’s worth parsing, using the actual Clinton standard set forth by then-FBI Director James B. Comey in July 2016.

In explaining his agency’s recommendation not to prosecute, Comey cited the lack of four elements that he said had been present “in some combination” in previous prosecutions involving removal or mishandling of classified information:

  1. “Clearly intentional and willful mishandling of classified information.”
  2. “Vast quantities of materials exposed in such a way as to support an inference of intentional misconduct.”
  3. “Indications of disloyalty to the United States.”
  4. “Efforts to obstruct justice.”

Comey concluded: “We do not see those things here.” Thus Clinton was not charged.

Let’s take them one by one and compare the evidence against Clinton and Trump.

1. ‘Clearly intentional and willful mishandling of classified information’

This was the portion of Comey’s decision that was most disputed in Clinton’s case.

The applicable law, the Espionage Act, states that it is a crime to remove national defense information from its “proper place of custody” through “gross negligence.” But Comey indicated that Clinton’s alleged misconduct had to be “clearly intentional and willful” to bring a prosecution — a standard many critics at the time complained was higher than “gross negligence” because it required intent. Comey even said in the same news conference that Clinton had been “extremely careless,” which sounds a lot like “grossly negligent.”

But if we’re arguing about applying the Clinton standard, “clearly intentional and willful mishandling” is that standard.

Comey said Clinton and others should have known better than to potentially expose this information on a private server, but “we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information.”

He said at a hearing two days later that there was insufficient proof that Clinton intended to obscure her emails. “Our best information is that she set it up as a matter of convenience,” he said, echoing Clinton’s own justification. But there were reasons to doubt the arrangement arose strictly out of convenience, The Washington Post’s Fact Checker found, citing the holes in Clinton’s various explanations.

Given the disputes over Comey’s read on Clinton’s intent, it’s difficult to directly compare with Trump. But a key difference is that there is a lot of evidence that Trump resisted relinquishing these documents when the government repeatedly came knocking for them.

As The Post reported last week in a thorough review of the known facts:

In a legal filing on Monday, Trump’s lawyers insisted that he had been cooperating with Justice Department requests. In fact, however, the narrative they laid out, as well as other documents and interviews, show that Trump ignored multiple opportunities to quietly resolve the FBI concerns by handing over all classified material in his possession — including a grand jury subpoena that Trump’s team accepted May 11. Again and again, he reacted with a familiar mix of obstinance and outrage, causing some in his orbit to fear he was essentially daring the FBI to come after him.

With Clinton, the question was: Did her reasons for setting up the private email server demonstrate her intent? With Trump, we’re still learning a lot. But there appears to be plenty of evidence to suggest that his intent was to keep these documents, even when the alleged mishandling was flagged to him.

Indeed, it’s becoming clear that Trump’s obstinance played a role in why he was searched. Whether that search was justified or not, it’s not really analogous to Clinton.

2. ‘Vast quantities of materials exposed in such a way as to support an inference of intentional misconduct’

“Vast quantities” is, of course, a subjective term. But the quantities do differ somewhat in these two situations.

With Clinton, Comey said 113 emails were found to have contained classified information, including eight email chains that had top secret information. (Many didn’t include classification markings at the time because they were not official government documents.)

With Trump, we still don’t know the full extent of what he took to Mar-a-Lago. But the partially redacted search warrant affidavit released last week said that Trump in January voluntarily returned 184 classified documents, including 25 that were marked top secret. The search earlier this month turned up 11 more sets of classified documents, including several that were top secret.

We don’t have the final numbers — the New York Times last week put the total number of classified documents at more than 300 — but the government has retrieved more classified and top-secret documents from him than from Clinton.

From there, the question is whether the number of documents is considered “vast” and “exposed” enough to “support an inference of intentional misconduct.”

(It’s also worth reiterating that, despite Trump’s claim that he declassified these documents, there is still no evidence that he actually did, and the laws the government has cited don’t require the documents to be classified for a violation to occur.)

3. ‘Indications of disloyalty to the United States’

There is no evidence that Clinton sought to obscure the information out of disloyalty to her country. Even if you think Comey too readily accepted her explanation of convenience, the most readily available alternative explanation is that she didn’t want these records to be obtainable because they could harm her political career. That’s not the same as disloyalty.

With Trump, the evidence on this front is very incomplete — and “disloyalty to the United States” is a very high bar. We do know that there was urgency to retrieve the documents for some reason, but despite plenty of speculation, we don’t know why that was.

4. ‘Efforts to obstruct justice’

This is likely to be the crucial difference, possibly alongside No. 1, if Trump is ever charged.

As mentioned earlier, Trump resisted returning these documents. He didn’t return them even after one of his attorneys agreed last year that they should be returned. His attorney also signed a document in June stating that all documents marked as classified had been returned, according to the Times. And the government cited the likelihood that it would find evidence of obstruction to obtain the search warrant.

Precisely what the government believes might rise to the level of obstruction, we’ll have to see.

As for Clinton, she testified to Congress about her private email server as part of the Benghazi hearings. She sat with the FBI in a voluntary interview for more than three hours. She also turned over tens of thousands of emails.

Her critics, including Trump, have long suggested that she engaged in a coverup by virtue of her and her team deleting many other emails and destroying phones. Comey said Clinton’s team turned over 30,000 emails deemed to be work-related after sorting through the documents using headers and word searches, rather than reviewing each one individually. This has long been used to suggest that the effort was nefarious — often using hyperbolic language involving bleach and acid — but there is no evidence it was. (And there are legitimate reasons to do these things.)

On this point, Comey was firm. He said that Clinton might have deleted some emails that were work-related — and that emails recovered through other means confirmed that — but that there was no evidence of a coverup.

“I should add here that we found no evidence that any of the additional work-related emails were intentionally deleted in an effort to conceal them,” he said.

He added later: “Although we do not have complete visibility because we are not able to fully reconstruct the electronic record of that sorting, we believe our investigation has been sufficient to give us reasonable confidence there was no intentional misconduct in connection with that sorting effort.”

The evidence of obstruction, in other words, just wasn’t there in Comey’s estimation. We’ll find out whether the Justice Department determines it is in Trump’s case, and if so, how compelling it is.

correction

An earlier version of this article said eight email chains reviewed during the Clinton investigation included information "marked" top secret at the time they were sent. The information was not marked at the time. The article has been corrected.

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