Dershowitz, French agree: Garland has to apply the Hillary rule to Trump

Michael Reynolds/Pool via AP

Do we have two systems of justice in America? Normally, that question gets raised in the context of race and/or class. The raid on Donald Trump’s residence on the basis of alleged mishandling of classified material now raises it politically as well. While Merrick Garland’s defenders dismiss comparisons to the Hillary Clinton investigation as nothing more than “whataboutism,” people on both sides of the Trump question insist that anything other than an application of the “Hillary rule” created in 2016 would expose the DoJ’s raid as politicized, if not corrupt.


First, Trump defender and con-law professor Alan Dershowitz argues that “but her e-mails” is a highly relevant point after the raid:

Why didn’t the Justice Department seek to enforce the subpoena it apparently had issued, rather than seek a search warrant? Was this consistent with the “standard practice” Mr. Garland articulated in his statement—“to seek less intrusive alternatives to a search” whenever possible?

Why was the matter handled so differently from the prior investigations of Sandy Berger and Hillary Clinton, who were also suspected of mishandling classified material? …

Those who reject this comparison accuse those who make it of “whataboutism.” But treating like cases alike is crucial to the equal protection of the laws. The way in which Berger and Mrs. Clinton were treated is highly relevant in determining whether Mr. Trump is being subjected to a double standard of justice.

The facts, especially the degrees of culpability, may be different; and if so, that would provide a good answer to the “what about” question. But if the facts are similar and the treatment is different, Americans are entitled to ask whether this constitutes the even application of the law that Mr. Garland promised. The shoe must fit comfortably on the other foot if justice is to be done and seen to be done. There can’t be one rule for Democrats and another for Republicans.

So the question “What about her emails?” is an appropriate one. Mocking it is no answer.

Of course, Dershowitz has often defended Trump, so some may dismiss this as advocacy in favor of a quasi-client. That’s harder to dismiss when it comes from David French, who makes the same argument at The Dispatch, not friendly territory when it comes to Trump apologetics. French makes a much more specific argument about what the Hillary Rule is as established by the DoJ in 2016, and that better explains its applicability now:


So why didn’t the FBI recommend charges? Here’s the key paragraph:

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.

I did not agree with this decision, and I said so in National Review and the New York Times. The problem is that Comey added elements to the statute. He essentially read “gross negligence” as a synonym for willfulness and added additional factors (such as obstruction of justice) to the prosecution decision. …

It remains to be seen whether Donald Trump’s conduct was so much worse than Hillary Clinton’s that prosecution is both legal and just. Indeed the entire issue may be so fraught with peril that the DOJ may decide to merely seize the documents without any further legal proceedings.

But if Trump did break the law and is not prosecuted, we can look back at a pivotal moment in history and know why. On July 5, 2016, the FBI set an extraordinary standard for prosecuting powerful people for mishandling our nation’s most precious secrets, and we shouldn’t change that standard for Donald Trump.

French is keeping his powder dry on Trump’s legal exposure here, which is wise in this context. However, we should also consider that Trump’s alleged mishandling of classified material was a one-off event that led to an 18-month standoff over the materials, which were stored in an allegedly insufficiently secured environment. Hillary Clinton transmitted classified information, including Top Secret-Compartmented data, for four years over a completely unsecured server and did so with the intent to avoid records requirements. The risk of exposure was exponentially higher in Hillary’s case, and the malice of avoiding accountability with the use of a personal server rather than the State Department’s official system much more obvious.


Of course, all of this assumes that Garland and the FBI had the Espionage Act violations as their sole concern. Andrew McCarthy looked at the warrant, and he’s more convinced than ever that this was just a pretext for a fishing expedition:

Where things get really, shall we say, elastic is subsection (c). It permits the seizure of “any government and/or Presidential Records created” throughout the four years of Trump’s presidency.

Plainly, this has nothing to do with classified information. It is mainly designed to use the criminal law — the search warrant, an intrusive tactic for retrieving evidence of crimes — to enforce the Presidential Records Act, which is not a criminal statute.

Can DOJ get away with this? Perhaps. Section 2071 is very broad, targeting anyone who “removes” or “destroys” “any” government record. If you are wondering how this did not apply to Hillary Clinton’s removal of tens of thousands of government-related emails and willful destruction of tens of thousands of others, you are not alone. In any event, Rule 41 of the Federal Rules of Criminal Procedure permits the seizure not only of evidence of a crime but also of “items illegally possessed.” It seems clear from the context that this phrase is meant to apply to items derived from criminal activity. Literally, though, it is clearly broader than that.

Since Congress did not choose to attach criminal penalties to violations of the Presidential Records Act, what we see here amounts to the Justice Department fashioning a new crime for Donald Trump. This is not my idea of the even-handed enforcement of the law — no partisan discrimination — that Attorney General Merrick Garland insisted he pursues in his remarks on Thursday. But there will be plenty of time to discuss that.

My point for present purposes is that subsection (c) authorized the FBI agents to seize every scrap of paper from the Trump administration. There is no limitation to classified information. There is no limitation to the Presidential Records Act. There is no limitation to the unmentioned Capitol riot. Indeed, there is no requirement that any scrap of paper be connected in any way to any crime whatsoever. No restriction at all. If it was arguably a government record of any kind generated during the Trump presidency, the judge said the bureau could take it.

The FBI and Justice Department will be doing what I told you they’d be doing: Poring over everything and anything from Trump’s presidency to try to make a January 6 case.


That’s an even better reason to keep our powder dry until the final shoe drops. If Andy’s right, then we shouldn’t expect any indictments under the Espionage Act. If Garland and his team can indict Trump on a January 6-related charge, then the Hillary Rule won’t apply. If they don’t get any evidence in their fishing expedition that can lead to an indictment on a January 6-related charge, they’ll likely have to shut down their Trump probe while keeping as many of the documents they seized as possible. If that happens, though, Garland will have a lot more to explain about the Mar-a-Lago raid, and the different treatment of Republican and Democratic targets of investigations.

I’ll give Dersh the last word on that point:

The “whataboutism” argument applies as well to the manner in which Trump loyalists such as Peter Navarro, Roger Stone and Paul Manafort were arrested. In comparable cases involving similar charges, the defendants weren’t handcuffed, shackled or subjected to restraints generally reserved for those who pose a risk of violence or flight.

Update: Talk about a harmonic convergence … count Stephen Miller in on the consensus, too:

The term “no one is above the law” has been thrown about on cable news and in news outlet columns over the past week, but as we saw with the investigation into Hillary Clinton, that is clearly not the case. Clinton, at the very least, should have been charged, and if not prosecuted, at least offered a plea deal that would have seen her serve no jail time. Such an event, of course, would have greatly damaged her presidential campaign and candidacy, just like the current circumstances facing Trump would.

Should Biden’s Justice Department move ahead with charges against Trump, leading to a trial and prosecution, it will deepen the politicized divide in a country already riven by partisanship. The FBI and current director Christopher Wray would face significant scrutiny — for good reason.

The message would be loud and clear: Democrats like Hillary Clinton can get away with violating laws, but Republicans who commit the same acts cannot. It would tear the very fabric of the FBI and DoJ apart.


Be sure to read it all.

Update: Michael Doran e-mails with an even more pointed recollection of 2016:

Hillary also lied to the FBI about the classified information. Lying to the FBI is supposedly a crime. Just ask Mike Flynn. Also the FBI treated her subordinates with kid gloves. To give just one example, Jake Sullivan, whom she instructed to strip the classifications from documents, has never suffered for his mishandling of classified docs. He’s not the only one.

Michael wrote about this four years ago at National Review:

Particularly damning was the form this material took. It is impossible to paste a classified document into an unclassified email accidentally, because the three computer systems (Unclassified, Confidential/Secret, and Top Secret) are physically separate networks, each feeding into an independent hard drive on the user’s desk. If a classified document appears in an unclassified email, then someone downloaded it onto a thumb drive and manually uploaded it to the unclassified network — an intentional act if ever there was one.

One of Clinton’s emails suggests that downloading and uploading material in this fashion was a commonplace activity in her office. In June 2011, a staffer encountered difficulty transmitting a document to her by means of a classified system. An impatient Clinton instructed him to strip the classified markings from the document and send it on as an unclassified email. “Turn into nonpaper w no identifying heading and send nonsecure,” Clinton instructed.

On three separate occasions staffers got sloppy and failed to strip the “nonpapers” of all markings that betrayed their classified origins. The FBI recovered one email, for example, that contained a “C” in parenthesis in the margin — an obvious sign that the corresponding paragraph was classified “Confidential.” When an agent personally interviewed Clinton, on July 2, he showed her the document and asked whether she understood what the “C” meant. For anyone who has ever held a security clearance, “C’s” in the margins are more ubiquitous than “C’s” on water faucets — and no more baffling. But Clinton played the ditzy grandmother. She had simply assumed, she said, that the “C” was marking an item in an alphabetized list.

In the 2,500-year life of the alphabet, this was a first: a list that started with the third letter and contained but a single item. The explanation was laughable, but any sensible answer would have constituted an acknowledgement of malicious intent. Her only out was the “well-intentioned but careless” script that Obama had written for her. In other words, she lied to the FBI — a felony offense.


I’d forgotten how much I’d forgotten until Michael e-mailed me. Be sure to read it all.

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David Strom 5:20 PM | February 22, 2024