Trump indictment reignites concerns of disparate DOJ treatment of Biden, Clinton

Much of Trump's legal argument has rested upon an interpretation of the Presidential Records Act

Published: June 9, 2023 11:05pm

The Justice Department's unsealing Friday of a 37-count indictment against former President Donald Trump related to his handling of sensitive materials is stoking long-standing concerns that Hillary Clinton and Joe Biden have been treated differently in their classified memos case.

Special Counsel Jack Smith has pursued the case since November of last year. Prior to his appointment, the FBI raided Trump's Mar-a-Lago estate in Florida in August 2022 seeking classified materials he may have removed from the White House. 

Former federal prosecutor and Trump administration official Kash Patel argued Smith will face some big legal hurdles to get the case to trial – including that he has overcharged Trump and failed in the 49-page document to even "charge the president with unauthorized possession of classified documents."

"But what they did do was take an ancient statute under the National Defense Information Act, Espionage Act, and charged him with improperly taking materials related to National Defense Information and using them against the interests of the United States of America," Patel said on the "John Solomon Reports" podcast.

"That is what they charged him with. And instead of charging him with one count for all the documents, they enter with a separate count for each document because that is what overzealous prosecutors do."

"I don't think this goes to a jury," he continued. "Maybe I'm crazy. I think there's too many legal issues that this judge is going to have to resolve."

Patel also contrasted the DOJ's handling of the Trump case with those of President Joe Biden and former Secretary of State Hillary Clinton, each of whom having attracted scrutiny for allegedly improperly handling sensitive materials. 

In July 2016, late in Clinton's Democratic presidential campaign against Trump, the FBI announced the conclusion of a years-long investigation into Clinton as secretary of state using a private email server for official communications.

The agency concluded that Clinton had been "extremely careless." However, FBI Director James Comey recommended no charges be filed against Clinton because she did not act with criminal intent. Afterward, some federal agencies concluded about 100 of her emails should have been deemed classified. 

"We're right on the money when you have Hillary Clinton, the most corrupt politician in U.S. history, coming out here celebrating about her emails, literally trying to make money off of her emails with some hat campaign," he said about her response to the Trump indictment. "Well, her emails are the ones that she should have been charged for, because the president's records that don't apply to her."

The former first lady is selling "But Her Emails" merchandise in the wake of the indictment, seemingly referencing her own scandal.

Much of Trump's legal argument has rested upon an interpretation of the Presidential Records Act and the contention that the commander-in-chief enjoys sweeping authority to declassify documents.

Trump himself maintains he had the authority to declassify the materials recovered from his estate and has previously pointed to a standing order to that effect. However, Clinton never served as president so such an argument does not apply to her.

Patel also said Clinton's past defenders over the scandal are now saying, "Wait a second, what did you do differently than what they're alleging President Trump did? Why aren't you in prison? And by the way, you weren't a president. So the Records Act doesn't apply."

"And let's not forget she had classified documents being transmitted over un-secure servers accessible to our enemies. Talk about someone who wanted to give our enemies something against America," he continued.

Harvard Law School Professor Emeritus Alan Dershowitz pointed to Comey's decision not to pursue charges against Clinton, saying that hers and Trump's each were matters of prosecutorial discretion.

"When you're going after a former president or even more importantly a man who was running against the incumbent president, it better be a slam-dunk, open-and-shut case with no possible defense, that there is no choice but to bring," he said on the "Just the News, No Noise" television show. "And this was a case of discretion, much like the Comey discretion that he used not to prosecute Hillary?"

Biden's case is more similar to Trump's.

Special counsel Robert Hur is looking into Biden's handling of classified materials after serving as vice president, but there have been so suggestions of a possible indictment. 

Documents were found in a former office at the Penn Biden Center in Washington, D.C., and at his home in Wilmington, Del.. Some of the documents reportedly were marked classified and contained sensitive intelligence related to Iran and Ukraine.

And Numerous documents were found to have been moved from Washington to the office of Biden attorney Patrick Moore in Boston that the government picked up in March.

Trump's home was raid amid ongoing negotiations to return the documents. Biden's were found first by an attorney and returned to authorities. The FBI was later reportedly involved in search and recovery efforts, but did not conduct a raid.

Article III Project Founder Mike Davis also appeared on the "Just the News, No Noise" show on Friday and expressed incredulity at remarks Smith made during a press conference explaining the charges during which he insisted that all Americans are equally subject to the law.

"I don't know if he felt like he needed to clarify or explain or whatever the case may be," Davis said. "There were a number of things that he said that caught me off guard. One of them was we have one set of laws and they apply to everyone. I know. That's what he's saying. 

"Jack Smith ... did not charge ... Biden with espionage for what he did with stolen classified records that he moved several times unguarded."

He also said Smith is a Democrat prosecutor who in 2014 convicted then-Virginia GOP Gov. Bob McDonnell on a "bogus legal theory" that was later overturned [unanimously] by the Supreme Court and that Smith's wife produced a biography for for the Obamas.  

"This is not a neutral prosecutor," he said. "This is a partisan prosecutor who is on a hit job to take out President Trump."

Ben Whedon is an editor and reporter for Just the News. Follow him on Twitter.

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