No, the FBI’s Trump investigation is not just like the Hillary

As more details emerge about why the FBI decided to raid former President Donald Trump’s Mar-a-Lago estate earlier this month, both Trump and his allies are increasingly suggesting the FBI is treating him differently than it treated Hillary Clinton, who avoided charges for her use of a private email server as secretary of state.

“James Comey read off a list of all … Hillary Clinton’s crimes, only to say that no reasonable prosecutor would prosecute,” Trump said of the former FBI director in a social media post this past weekend.

But a review of government documents from both investigations suggests there are key differences between the evidence uncovered in Clinton’s case and the evidence already publicly documented in the Trump investigation.

Comparing classified info

Some of Trump’s allies claim that the way Clinton allegedly mishandled sensitive information was — as one pundit put it — “a lot more serious” than the way Trump allegedly did.

Just on the surface, the number of items containing classified information is different. In the Clinton case, federal authorities identified “approximately 193 individual emails” that, when sent, contained some level of classified information, according to a 2018 report from the Justice Department’s inspector general.

In the Trump case, federal authorities have more than 322 individual documents containing classified information that were kept at Mar-a-Lago: 184 “unique documents” containing classified information were retrieved early this year, another 38 such documents were retrieved in June, and then more than 100 more documents marked “classified” were found during the FBI raid on August 8, according to Justice Department filings in court.

In Clinton’s case, the most sensitive “top secret” information on her servers was deemed by authorities to be “relevant to” and “associated with” a tightly-guarded “Special Access Program” — and the inspector general said that “investigators found evidence of a conscious effort to avoid sending classified information, by writing around the most sensitive material.”

“It’s not unusual for folks with clearances to sometimes discuss classified matters in unsecure settings,” said Tony Mattivi, a former federal prosecutor who coordinated the Justice Department’s counterintelligence and counterterrorism cases in Kansas. “You can’t always be in a [secure room] when you need to talk to some people or do certain things, so the way you do that is talk around the classified part. … [But] that’s very different than possessing classified material.”

In contrast, federal authorities have recovered from Mar-a-Lago more than 100 “unique documents” marked “secret” and dozens of other documents marked “top secret,” including “Special Access Program materials,” according to the Justice Department and National Archives. Some of those documents marked “classified” were found inside Trump’s desk in his office, the Justice Department said.

Accordingly, there “is a meaningful distinction” between Trump’s alleged handling of classified documents and what the Justice Department’s inspector general says transpired in the Clinton case, according to Mattivi, a Republican who recently lost a primary race to become attorney general of Kansas.

Where’s the evidence — literally?

In accusing the FBI of treating Trump and Clinton differently, Trump’s allies have publicly noted that — even though Clinton potentially compromised classified information — “we didn’t raid her home,” as Trump’s former CIA director, Mike Pompeo, recently put it.

But in his report on the Clinton matter, the Justice Department’s inspector general made clear that federal investigators in that case were able to obtain the materials at issue — Clinton’s private email servers and the emails themselves — without raiding her home.

“Where possible, it is standard practice to seek less intrusive means as an alternative to a search,” Attorney General Merrick Garland said in a statement after the raid on Trump’s estate.

As described in the inspector general’s report on the Clinton matter, “the FBI obtained more than 30 devices” from Clinton and her aides, and “received consent to search Clinton-related communications on most of these devices.” Among those 30 devices were two of Clinton’s three private email servers, after the third server had been “discarded” years earlier “and, thus, the FBI was never able to access it for review,” the inspector general’s report said.

In Trump’s case, the evidence at the center of the ongoing investigation was still being held at Mar-a-Lago, even after a federal grand jury subpoena three months earlier instructed that “any and all documents” marked “classified” be turned over.

Trump’s lawyers have emphasized that “documents were provided” to the FBI in response to the subpoena, but in a court filing Tuesday, the Justice Department said, “Through further investigation, the FBI uncovered multiple sources of evidence indicating that the response to the May 11 grand jury subpoena was incomplete and that classified documents remained at [Mar-a-Lago].”

“The government also developed evidence that government records were likely concealed and removed from the Storage Room [at Mar-a-Lago] and that efforts were likely taken to obstruct the government’s investigation,” the Justice Department said.

What’s the intent?

The final decision over whether to charge Trump or his aides may rest on what prosecutors find about their intent in taking documents marked “classified” to Mar-a-Lago and then rebuffing the U.S. government’s efforts to reclaim those documents.

Publicly-released portions of the affidavit used to support the FBI raid of Mar-a-Lago say that the FBI is investigating, among other potential crimes, whether Trump engaged in the “willful” mishandling of documents or information relating to the national defense, as defined by section 793(e) of U.S. code 18.

Federal prosecutors looked at the same statute when contemplating charges against Clinton and her aides for the classified information found on her private email servers.

To charge any of them with violating 793(e), prosecutors would have had to prove beyond a reasonable doubt that Clinton or her aides acted “willfully” and “with the intent to do something the law forbids,” the Justice Department’s inspector general said in its report on the case.

Prosecutors determined that the evidence and facts of Clinton’s case showed “a lack of intent to communicate classified information on unclassified systems,” especially since “[n]one of the emails Clinton received were properly marked to inform her of the classified status of the information,” and investigators found evidence that Clinton and her aides “worded emails carefully in an attempt to ‘talk around’ classified information,” according to the inspector general’s report.

“There was no evidence that the senders or former Secretary Clinton believed or were aware at the time that the emails contained classified information,” prosecutors concluded, according to the inspector general.