Ever since the FBI raided the home of former President Donald Trump earlier this week, his defenders have been quick to compare the situation to the investigation that engulfed former Secretary of State Hillary Clinton for her handling of governmental communications. But while Trump is also facing an investigation for his handling of official correspondence and documents, the cases differ significantly.
A comparison of the two investigations based on the information publicly available suggests that it’s the responses of Trump and Clinton themselves that have dictated the investigative steps and how forceful they have been. Any criticism that Clinton was somehow treated more leniently than Trump results from a superficial review of their cases. If anything, Clinton suffered more mistreatment from violations of Justice Department protocols and politicization of her case than Trump has.
If anything, Clinton suffered more mistreatment from violations of Justice Department protocols and politicization of her case than Trump has.
In the case of Clinton, the FBI examined her use of a private email server for official governmental communications while she was secretary of state. The federal law at issue provided for up to five years’ incarceration for the unauthorized removal of classified material and for retaining that material in an unauthorized location. Ultimately, the government failed to establish that Clinton had acted criminally.
The investigation that currently embroils the former president involves three criminal statutes as listed in the search warrant. The first provides a sentence of up to three years for intentionally removing certain items from any public office. The second provides a penalty of up to 10 years for unauthorized possession of items, including documents that the possessor has reason to believe could harm the United States, if the possessor refuses to deliver the items to an officer of the United States entitled to their possession when requested. The final statute listed in the search warrant provides a sentence of up to 20 years for concealing or destroying documents to hinder an investigation. Trump has denied any wrongdoing, and it is not certain that Trump is the focus of the investigation.
Though Trump’s case has more legal dimensions and potentially greater punishment, the two investigations do have much in common. Both involved unauthorized handling of documents or items far from the officially sanctioned locations for those materials. In the case of Clinton, the emails were on a personal server. The concern there was the potential for a hacker to obtain classified information that could result in harm to the United States.
As for Trump, based upon the limited information currently available, the concerns could be like those that prompted the Clinton investigation, namely, the existence of classified information that could be disclosed to the detriment of the United States. But the Mar-a-Lago search warrant also occurred against a backdrop of other grand jury investigations surrounding Trump.
The Department of Justice has convened a grand jury to look into the events surrounding the Jan. 6 storming of the Capitol. Another is considering whether Trump or his associates interfered with the presidential vote in Georgia in 2020. Consequently, there was potentially the danger that relevant evidence was being hidden and either was or would be destroyed.
While we seem to be far from the conclusion of the Trump investigation, we know that the Clinton investigation was lengthy and extensive. Apart from the FBI’s criminal investigation, the Office of the Inspector General of the State Department issued a report on her handling of classified material, and numerous committees of Congress launched their own (largely partisan) investigations. The FBI found no evidence of criminal actions in Clinton’s use of a private email server, and a Justice Department Inspector General report on the FBI’s and its own Clinton investigation lent further support to the conclusion that there were no criminal violations.
Despite the conclusions, the process Clinton underwent transgressed Justice Department guidelines, resulting in its wielding substantial political influence. As such, the Clinton investigation harmed the former secretary of state even though it ultimately exonerated her.
During the Clinton investigation, then-FBI Director James Comey provided updates on the progress of the investigation in contravention of Justice Department policy. Moreover, Comey went so far as to hold a press conference in which he both exonerated Clinton and criticized her professionalism in an arena that did not permit her to respond. He said that the investigation had failed to prove any criminal violations, as Clinton had not acted with the necessary criminal intent to convict her of a crime, but he accused her of being “extremely careless” in handling the emails. Furthermore, Comey inserted himself into the 2016 election when he then announced within two weeks of the 2016 presidential vote that the FBI was reviewing more of her emails — an announcement that may have played a major role in determining the outcome of that election.
By contrast, there are no such signs of Justice Department aberrations or politicization concerning Trump. The investigation appears to have been scrupulous in its adherence to Justice Department regulations and protocols to this point. The media has reported that officials from the National Archives initially contacted the former president regarding documents believed to be in his possession. When noninvestigative contact from the National Archives failed to result in the production of the materials belonging to the United States, the agency referred that matter to the Justice Department.
The department itself initially attempted to obtain the material through informal contact with representatives of the former president. When this failed, the department served a subpoena for the items, presumably on Trump or on the custodian of records at Mar-a-Lago. This apparently resulted in protracted discussions but not the production of documents for the National Archives. Ultimately, the FBI executed a search warrant to seize the items.
In stark contrast to Comey, who opined about the his investigation, its results and the actions of the former secretary of state, Attorney General Merrick Garland breached no such conventions during his brief appearance before the media on Thursday to discuss the search at Mar-a-Lago. Garland merely announced that the department would seek to unseal the search warrant and inventory left at the search location but did not reveal any information about the investigation.
There are of course limitations in what can be compared between a completed investigation and one that is still ongoing. But we can already observe one major difference between these two: the response of the principals involved. According to what’s publicly known, Clinton and her representatives cooperated with the investigation and investigators. Therefore, there was no need for the issuance of a subpoena or for executing a search warrant.
In contrast, the response by Trump and his representatives appears to have been to delay: First they apparently stiffed the National Archives. Then they seemed to initially do the same to the Justice Department. Lastly, they failed to respond to a Justice Department subpoena.
And there could be more revelations to come. The public does not know the full range of the investigation, specifically whether it is limited to the documents withheld from the National Archives or if it involves other issues. This naturally means the full extent of Trump’s response has yet to be appreciated as well.
But we do know that investigators executed a search warrant at Mar-a-Lago because the Trump camp failed to respond to less-intrusive investigative efforts. This was a more aggressive legal action than Clinton faced, because she more fully cooperated than he did. Any further comparisons of their cases must keep this crucial context in mind.
Ultimately, comparisons of the investigations attempting to show that Clinton received more lenient treatment than Trump as proof that law enforcement has a vendetta against the former president are misleading. All investigations possess a dynamism as investigators follow leads and respond to events as they occur. In each of these investigations, the investigative actions followed the dictates of the inquiries.
Richard A. Serafini
Richard A. Serafini is a criminal defense attorney and former senior trial attorney for the Justice Department’s Criminal Division.