The core of the accusation against former President Donald Trump is the allegation that he retained and mishandled classified information and national defense secrets. Special Counsel Jack Smith justified this unprecedented prosecution by citing the need to protect classified information and the rule of law. But do we really have “one set of laws in this country”? Here is a list of eight past examples of high-profile individuals who were never prosecuted for the same basic or similar allegations.
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Hillary Clinton – Former Secretary of State Hillary Clinton was found to have maintained a private email server during her four-year tenure at the Department of State. The server was located in a bathroom closet in a loft in Denver, Colorado, and included classified information. Worse yet, Clinton used 13 mobile devices to send and receive emails on the server, and five iPads. Some of the mobile devices were destroyed with hammers.
Despite Hillary Clinton’s denials, there were hundreds of emails on her private server that included classified information. As Fox News noted last year (original links):
Intelligence Community Inspector General I. Charles McCullough III laid out the findings of the Clinton documents review by intelligence agencies that identified “several dozen” additional classified emails – including specific intelligence known as “special access programs” (SAP).
According to a 2018 Department of Justice inspector general’s report, “81 email chains containing approximately 193 individual emails that were classified from the CONFIDENTIAL to TOP SECRET levels at the time the emails were drafted on UNCLASSIFIED systems and sent to or from Clinton’s personal server.”
(Clinton reportedly said she did not know “C” stood for “classified.”)
Critics of the Clintons suspected that she sought to shield her communications from Freedom of Information Act requests and government records requirements. More specifically, they suspected that she and her husband were using her position as Secretary of State to raise funds, including from foreign donors, for their family foundation, which in turn supported their lifestyles, and that the email server concealed relevant information.
Clinton was investigated by the FBI, but after Attorney General Loretta Lynch and former President Bill Clinton were caught meeting on the tarmac at an airport in Arizona, Lynch deferred the decision on whether to pursue charges against Clinton to FBI Director James Comey (without formally recusing herself). In a now-infamous press conference, Comey said that Clinton had been “extremely careless” in handling classified information, and that it was possible that America’s enemies had gained access to her email account:
We do assess that hostile actors gained access to the private commercial e-mail accounts of people with whom Secretary Clinton was in regular contact from her personal account. We also assess that Secretary Clinton’s use of a personal e-mail domain was both known by a large number of people and readily apparent. She also used her personal e-mail extensively while outside the United States, including sending and receiving work-related e-mails in the territory of sophisticated adversaries. Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal e-mail account.
However, Comey also said that prosecuting Clinton was inappropriate because she did not appear to intend to break the law. Critics noted that her intent to hide her emails had been clear, and that the relevant portion of the Espionage Act lacked a clear intent requirement, regardless.
Bill Clinton – In what became known as the “Socks case,” Judicial Watch, a private non-profit organization, sued the government to compel it to provide audio tapes made by the White House when Bill Clinton was president and participating in interviews with a historian. President Clinton allegedly hid the tapes in his sock drawer when he left the White House, the better to claim them as “personal” rather than presidential records.
As Judicial Watch attorney Michael Bekesha recently recalled in the Wall Street Journal, the National Archives and Records Administration said it did not have the tapes, and the Department of Justice (DOJ) said the National Archives did not have the duty or power to seize them. The DOJ’s position was that the president had sole authority under the Presidential Records Act of 1978 to decide what was, and what was not, a “presidential record” — and there was nothing the National Archives could do about it. Judge Amy Berman Jackson agreed. It is probable that there was classified or sensitive information on the tapes, which included discussions of military and diplomatic actions. Yet Bill Clinton was not punished for taking the audiotapes with them, nor did the National Archives or the DOJ show any interest in obtaining them and preventing their mishandling.
Joe Biden – President Biden took classified documents from the Sensitive Compartmented Information Facility (SCIF) in the Senate when he left to take up his new post as vice president. Those papers were stored in his archive at the University of Delaware, which sealed public access to his records. More egregiously, he was found to have taken classified documents to his private home in Wilmington, Delaware, where they were stored in his garage, next to his Corvette. His son, Hunter Biden, known to have close contacts with foreign business partners and even Chinese intelligence, stayed at the house during the time the classified documents were kept there, and had access to the garage, and was even seen driving the Corvette.
Biden also kept boxes of classified materials at his office in the Penn-Biden Center, which regularly received foreign visitors. The University of Pennsylvania, which houses the center, allegedly received donations from Chinese sources that had some connections to the Bidens.
Unlike Trump, Biden never had any authority to declassify documents, since he was not president at the time. He was not prosecuted, though the Department of Justice appointed a special counsel to investigate his alleged mishandling of documents. There were no armed FBI raids, nor seizure of personal effects. Biden’s lawyers kept finding more documents, even after the White House implied the searching was over. Ultimately, the FBI searched Biden’s homes and former office, with the consent of his attorneys.
James Comey – Outgoing FBI director, who had just been fired by President Trump, leaked memoranda of his conversations with the president to the press, via a Columbia University professor — who later became his lawyer — who then leaked them to the media. Comey did so, he later admitted, hoping to trigger the appointment of a special counsel to probe allegations of “Russia collusion” — even though he and the FBI knew that the primary source of the claims, the so-called “Steele dossier,” was a fraud. The Department of Justice investigated the leaks but declined to do anything about it, saying Comey did not intend to leak to the media.
Barack Obama – A president cannot “leak,” by definition, because the president has full authority to classify or declassify information. But the Obama White House leaked sensitive information on a constant basis. In 2012, the New York Times reported that then-President Barack Obama maintained a “kill list” of suspected foreign terrorists who were to be droned. The report made Obama look tough during a close reelection fight; the information was almost certainly leaked by someone in the White House. Yet despite the concern in some quarters, both about the leak and the substance of it, Obama was never held responsible for it.
Sen. Dianne Feinstein (D-CA), then chair of the Senate Intelligence Committee, complained publicly about the abundance of Obama-era leaks: “I think the White House has to understand that some of this is coming from their ranks.”
The Washington Times reported on a pattern of releasing classified information from the White House — even as the Obama administration cracked down on low-level leakers such as Bradley “Chelsea” Manning and Julian Assange:
In interviews with several current and former officials, the [Abdullah] al-Shami case [of an alleged American Al Qaeda operative] was cited as an example of what critics say was the Obama White House’s troublesome tendency to mishandle some of the nation’s most delicate intelligence — especially regarding the Middle East — by leaking classified information in an attempt to sway public opinion on sensitive matters.
By the end of Mr. Obama’s second term, according to sources who spoke anonymously with The Washington Times, the practices of leaking, ignoring and twisting intelligence for political gain were ingrained in how the administration conducted national security policy.
The practice of twisting and leaking intelligence was evident in the way that the Obama administration, and the Hillary Clinton campaign, seeded the “Russia collusion” conspiracy theory within the media.
Mike Pence – Just as Biden was found to have kept classified documents at his personal resident, so, too, former Vice President Pence was found to have government documents at his home, apparently taken as part of his effort to compose his political memoirs in anticipation of his presidential campaign in 2024. Pence returned the documents after they were discovered. Still, like Biden, Pence had no authority to take the documents, even as vice president. The Department of Justice declined to prosecute Pence just before it indicted Trump.
Lyndon Johnson – As conservative radio host Mark Levin has noted, the president most associated with the Vietnam War removed sensitive federal records, sealed them for 50 years, and even destroyed some of them. From the Miller Center at the University of Virginia:
One week after President Johnson’s death on January 22, 1973, his longtime personal assistant Mildred Stegall transferred to the Lyndon B. Johnson Library custody of eight sealed Federal Records Center (FRC) boxes. She stated that Johnson considered the materials contained in the FRC boxes to be very sensitive and that he had instructed they were to remain sealed for fifty years after his death. The boxes contained recordings of some of Johnson’s telephone conversations from November 22, 1963, through January 2, 1969. Stegall also transferred custody of reel-to-reel analog tapes of many meetings held in the Cabinet Room in 1968. [1]
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The Dictabelt collection [of Johnson’s recorded conversations during his presidency] is not complete: at least one Dictabelt recording is missing. According to the Presidents Daily Diary for Thanksgiving Day 1966, Johnson spoke to Supreme Court Justice Abe Fortas from his Ranch in Texas. The Diary entry for that telephone call noted that the “belt [was] destroyed on President’s instruction.” [48]
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Stegall kept these recordings locked in a large safe in her office in the West Wing of the White House. Later, after Johnson left the white House and returned to Austin, Texas, Stegall was the custodian of these Dictabelts, and these materials were not specifically identified in President Johnson’s original Letter of Intent of August 13, 1965. [50]
Johnson was never prosecuted under the Espionage Act of 1917 — under which Trump is being prosecuted — possibly because it was never intended to apply to presidents.
Leon Panetta – Then-CIA Director Panetta allegedly leaked classified information to a filmmaker behind Zero Dark Thirty, a film about the search for Al Qaeda terrorist leader Osama bin Laden that was originally intended for release before the 2012 elections. A draft inspector general’s report suggested that Panetta had revealed the unit involved in the mission, as well as its commander, as screenwriter Mark Boal was present for a CIA event.
ABC News reported in June 2013:
[The draft report] also discusses the June 24, 2011 award ceremony at CIA headquarters to recognize those who contributed to the bin Laden operation. At the ceremony, then-CIA Director Panetta identified the unit that took on the mission and revealed the name of the commander on the ground, even though Boal, a civilian, was in the large audience, the report said. Special operations personnel from the Defense Department, who were also in the audience, “were all ‘universally… surprised and shocked’ that a Hollywood executive attended this CIA Headquarters awards ceremony,” the report says.
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The draft report does not accuse Panetta of any wrongdoing and notes he had not been interviewed at the time of the draft’s creation. A source close to Panetta told ABC News the CIA chief was not aware there was anyone in the room that had not been cleared for the secret information. The source also stressed the draft report was just that, a draft, and did not necessarily represent the IG’s final conclusions.
The final inspector general’s report omitted the episode about Panetta. It did describe “how the Executive Office of the President, the White House and the National Security Council encouraged Pentagon officials to cooperate with the filmmakers,” according to the Project on Government Oversight (POGO) but it left out the information about senior officials — a fact that led Sen. Chuck Grassley (R-IA) to issue his own report on the IG’s “bungling.”
Ironically, the only person who faced scrutiny was the Pentagon official who gave a copy of the draft report to Congress, Dan Meyer, who said he believed it was the final version. He was later fired for unknown reasons.
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The point is not that mishandling of classified information is never punished: it is often punished harshly when the defendants are low-level leakers or inadvertent offenders. But senior officials often escape punishment, or are lightly punished, especially if they are Democrats.
The way that President Donald Trump is being treated is extraordinary and vastly out of proportion to both the alleged offenses and the history of such investigations.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the new biography, Rhoda: ‘Comrade Kadalie, You Are Out of Order’. He is also the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.
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