No, Trump's classified document haul is nothing like Hillary Clinton's emails

As much as I loathe the idea of re-litigating "but her emails," I'm sorry to say that it's now necessary

By Heather Digby Parton


Published June 12, 2023 9:11AM (EDT)

Hillary Clinton and Donald Trump (Photo illustration by Salon/Getty Images)
Hillary Clinton and Donald Trump (Photo illustration by Salon/Getty Images)

I think we knew that a federal indictment of former president Donald Trump would elicit a collective primal scream from the right-wing fever swamp — and they have not disappointed.

In true Trump-era fashion, the response from most elected Republicans has been a collective whine about "unfairness" and the "weaponization" of the "deep state." Some have even gone so far as to at least hint around that it's a nice little country we have here, be a shame if anything happened to it. I would expect nothing less. This is how they roll.

There are, notably, a few dissenters from that party line.

Utah Sen. Mitt Romney put out a statement saying that Trump "brought this on himself" and it's "consistent with his other actions offensive to the national interest," which is true. Former New Jersey Gov. Chris Christie, a 2024 GOP hopeful, said "these facts are devastating," which is also true. But they, and a handful of others, are outliers among GOP elected officials.

One very significant former GOP official has come out swinging, however:

There are a number of Trump defenses out there. But the main talking point, which we can assume was coordinated, is that this is a political prosecution engineered by President Biden to take out his most threatening political rival. And their main proof of this is that the Department of Justice (DOJ) declined to prosecute Hillary Clinton. Sen. Lindsey Graham of South Carolina probably articulated this the best, including the deployment of some very emotional righteous indignation:

He's not saying it's ok, he's just saying that Hillary Clinton got off so that cancels out Trump's crimes. Or something.

Sen. Ron Johnson, R-Wi. says that Trump refused to prosecute Clinton but Joe Biden sent in a SWAT Team to torment Trump:

Florida Gov. Ron DeSantis sounded the same theme:

Is there a different standard for a Democrat secretary of state versus a former Republican president? I think there needs to be one standard of justice in this country. Let's enforce it on everybody and make sure we all know the rules."

It wasn't a perfect defense of Trump but as long as he makes sure to condemn Hillary Clinton is probably good enough for the moment.

So when you see these Republicans emitting their epic whines about how unfair all this is because Hillary didn't get indicted, keep in mind that it wasn't for lack of Trump trying to get it done.

As much as I loathe the idea of re-litigating "but her emails," I'm sorry to say that it's necessary. There was almost no pushback to this talking point from the media, probably because they didn't get the Clinton story right in the first place. A few have since stepped up to point out that Clinton didn't refuse to cooperate with the government, as Trump did, although Trump and his accomplices will no doubt cry inanely about her "bleaching the emails" and smashing the phones" and that will be enough to sustain the argument. Trump may even say "Russia, if you're listening" again. But those allegations are just plain silly and always have been. And the fact that she didn't obstruct the investigation is only part of the story.

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As it happened, Clinton copied all work emails to the State Department system so they had them. The Justice Department inspector general issued a report in 2018 about the FBI Investigation and determined that the people tasked with marking documents as classified had not done so clearly. Moreover, only three email chains "contained any classification markings of any kind," and they were low-priority "call sheets" marked with the lowest priority of classification, which had info and details for Clinton to refer to when talking to a foreign leader. There were no nuclear secrets or war plans among them, needless to say. 

The State Department under Rex Tillerson and Mike Pompeo did two separate investigations and found in 2019 that there was "there was no persuasive evidence of systemic, deliberate mishandling of classified information" and that Clinton bore no "individual culpability."

As much as I loathe the idea of re-litigating "but her emails," I'm sorry to say that it's necessary.

And let's dispense with the "magnanimous" Trump defense. Trump tried desperately to get the DOJ to investigate Clinton (and many others he considered his political enemies.) His White House counsel told him that the DOJ operated independently and if he ordered it there would be tremendous unrest from career officials and massive political blowback. That didn't stop him. He conspired with Matthew Whittaker, then an assistant to then-Attorney General Jeff Sessions to get Sessions to assign a Special Counsel to investigate Clinton. In the end, they succeeded in getting Sessions to assign John Huber, a US Attorney in Utah to look into all the allegations against Clinton, including the bogus "Uranium One" scandal which had also already been dismissed. That investigation didn't turn up anything either.

Notably, when Bill Barr became Attorney General he looked into all of it and also came up with nothing. If anyone thinks that Barr wouldn't have prosecuted Clinton if he could have doesn't recall just how much he hates her guts. The evidence just wasn't there. So, the FBI, the DOJ Inspector General, two State Department probes, a Clinton-hating attorney general and a U.S. Attorney assigned to review all the evidence found that Clinton committed no crimes. (I'm not even counting the 10 Benghazi investigations which were the genesis of the email scandal —- and also came up empty.)

I know your eyes have glazed over by this point and you wonder why in the world anyone should care about this. And frankly, we shouldn't have to. It's long settled ancient history. But the right's "whatboutism" and the media's continued unwillingness to acknowledge that, once the FBI determined there was no crime, there was no crime, I fear that a lot of people who aren't already down the right wing rabbit hole will be persuaded that this is a partisan prosecution simply because of the words "classified documents."

When former FBI Director James Comey held that first notorious press conference in the summer of 2016, in which he larded with inappropriate personal judgments about Clinton, he laid out the criteria the Justice Department uses when it decides whether to prosecute classified documents cases. He said:

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.

Assuming they have proof of the charges in the Trump indictment, there can be little doubt that they met three of those four criteria, (the fourth being disloyalty to the United States which I believe to be true as well.) So when you see these Republicans emitting their epic whines about how unfair all this is because Hillary didn't get indicted, keep in mind that it wasn't for lack of Trump trying to get it done. It was because, unlike him, she didn't break the law. And even Jeff Sessions, Rex Tillerson, Mike Pompeo and Bill Barr couldn't find a way to make it so.

In case you were wondering, yes the House Republicans are considering a new investigation into —- you guessed it —- her emails. Because of course they are.

By Heather Digby Parton

Heather Digby Parton, also known as "Digby," is a contributing writer to Salon. She was the winner of the 2014 Hillman Prize for Opinion and Analysis Journalism.

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Bill Barr Clinton Email Scandal Commentary Department Of Justice Doj Donald Trump Hillary Clinton