OK, Fine, What About Hillary?

6 reasons why comparing Trump and Hillary shows that his mishandling of classified material was worse

Comparisons between Hillary Clinton’s private email server and Donald Trump storing government documents at his club and sometimes residence Mar-a-Lago are unavoidable. Both involve high profile politicians who served in a senior government position, ran for president as a major party nominee, and stir passionate hatred in political opponents. Both famously came under FBI scrutiny for mishandling classified material. But beyond those surface-level similarities, the cases differ.

America should “apply the Hillary Clinton rule to Donald Trump,” argues Dispatch editor David French. Unlike committed Trump defenders making this comparison, French is not doing whataboutism—the insidious two-wrongs-make-a-right (or at least an okay) logic that aims to excuse and distract from recent malfeasance by pointing to something somewhat similar someone else did. Instead, he argues from the position of equal justice, the principle that says if two similar people “commit an identical crime,” they should be treated the same. French’s critics are right that this is not the reality in America—one of many ways is how Blacks and Hispanics tend to get harsher sentences for drug crimes than similarly situated whites—but that doesn’t undermine the principle. The solution to excessive incarceration of racial minorities is less punishment for them, not equally excessive jail time for white criminals.

But in this case, the crimes aren’t identical, nor are the responses to law enforcement. The “Hillary rule” doesn’t provide a good guide to what America should do about Trump, for at least six different reasons:

1–Trump put U.S. information security at greater risk

Both Hillary and Trump’s actions possibly violated parts of the Espionage Act concerning mishandling of defense information. Some emails that went through Hillary’s server concerned “Special Compartmented Information,” or TS/SCI, the highest level of classification. Similarly, the receipt the FBI gave Trump for items confiscated from Mar-a-Lago includes “various classified TS/SCI documents.”

I agree with French that what Hillary did was serious, and that her defenders are too dismissive of the concerns. That said, Hillary’s mishandling of American secrets posed less risk to national security than Trump’s. 

Hillary did it while Secretary of State, giving her a legitimate reason to email about state business. Trump did it as a former president, a private citizen, with no legitimate use for boxes of classified information.

Hillary exposed U.S. secrets to interception by foreign adversaries, and by going around government procedures, did so in a way that American officials would’ve been less likely to catch. But email servers and accounts are controllable, have cybersecurity protections, and keep records (even if those records were not held by the government, they could be examined afterwards in the event of a breach). In 2016, FBI Director James Comey said they found no evidence Hillary’s server had been hacked, and a 2018 report from the Justice Department’s Inspector General reviewing the FBI’s investigation confirmed that they found no evidence, and said they were “fairly confident that there wasn’t an intrusion.” 

By contrast, Trump’s Florida resort is an uncontrolled environment, with numerous people who don’t work for the government and don’t have security clearance moving around. From early in Trump’s presidency, the Secret Service expressed concerns about keeping track of who came and went from Mar-a-Lago, and U.S. counterintelligence had an active probe into possible foreign operations targeting the club.

In 2019, a Chinese woman was arrested at Mar-a-Lago carrying four cell phones, a laptop, an external harddrive, and a thumb drive containing malware. She got convicted of trespassing and lying to federal agents, spent eight months in jail, and was then deported. The criminal complaint said she made it past at least five Secret Service officers before she was stopped and searched.

Security camera footage from Mar-a-Lago reportedly shows people moving boxes containing sensitive information in and out of the room where Trump stored them, and in some cases changing their containers.

If Hillary was, as Comey put it, “extremely careless,” Trump was even more so.  

2–The law changed

One problem with applying the same standard to Hillary and Trump is the relevant law is not the same. In 2018, a new Foreign Intelligence Surveillance Act upgraded wrongly moving classified material from a misdemeanor to a felony. It passed the Republican-led House, Republican-led Senate, and was signed into law by President Donald Trump.

Even if Trump’s actions were identical to Hillary’s, for the Department of Justice (DOJ) to not treat it as more serious, they’d have to ignore current law and operate under a previous legal standard.

3–Proper law enforcement conduct 

DOJ shouldn’t treat Trump like they treated Hillary. They should do better. And thus far, they have.

With the Clinton email case, Director Comey took the unusual step of holding a press conference in July 2016 to announce that she wouldn’t be charged. That’s atypical, but defensible given the degree of public interest. But then he editorialized, going beyond facts and law to personally disapprove of her conduct.

Comey predicted that Hillary would win the election and wanted to head off Republican accusations that the FBI was biased in her favor. She lost, and Republicans denounced the FBI anyway. It’s a good example of why law enforcement decisions should be based on proper procedure, not on guesses about political reactions.

Then, less than two weeks before the 2016 election, Comey informed Congress he had reopened the Clinton investigation based on some emails they found on a laptop belonging to Congressman Anthony Weiner, who was married to Hillary aide Huma Abedin. Comey did this before the FBI had reviewed the emails, which turned out to contain nothing new. Investigating was appropriate, pre-review disclosure was not.

At the same time, the FBI was looking into Trump and his associates’ ties to Russia, but they kept that quiet (as they should have—it was an ongoing investigation, not criminal charges).

Applying the “Hillary rule” to Trump would require law enforcement leaders to publicly criticize his behavior, and to make attention-grabbing, suspicion-raising announcements right before an election without any new incriminating evidence.

Instead, FBI Director Christopher Wray and Attorney General Merrick Garland have refrained from public comment on Trump and classified documents, which they have been investigating for months. Meanwhile, the FBI has continued investigating the business activities of Joe Biden’s son Hunter, also without public comment.

The one time Garland publicly commented on the Trump documents investigation was a few days after the FBI executed the search warrant at Mar-a-Lago (Wray never has). As with Comey’s statement, Garland’s was a response to intense public interest. But unlike Comey, he didn’t share his personal opinion about the subject’s conduct. Garland briefly explained that DOJ followed standard procedure—a federal judge found probable cause, the FBI provided Trump’s lawyers with a copy of the warrant and a receipt for items taken—and that they had filed a motion in court to unseal the warrant only after Trump said he wanted it unsealed. Garland asserted that “attacks on the integrity of” federal law enforcement were “unfounded,” reasserted that “rule of law means applying the law evenly,” and took no questions. It was professional.

4–Compliance with investigators

The search warrant itself is a noteworthy difference between the Trump and Hillary cases. But here, too, the “Hillary rule” doesn’t fit. Hillary complied with a subpoena from a House committee investigating the Benghazi attacks (which uncovered her private server) and testified under oath. She turned over emails to both Congressional investigators and federal law enforcement. Hillary’s team had deleted some emails, so there were reasonable questions about possible obstruction, but the FBI found no evidence the emails were “intentionally deleted in an effort to conceal them.”

Trump, by contrast, did not cooperate. The government worked to address the matter quietly, first asking in January 2022 for Trump to give back the material he took. He returned some, but archivists found a lot missing, so they sent a letter in May explaining the national security risks of keeping “Sensitive Compartmented Information and Special Access Program materials” at Mar-a-Lago. Trump ignored that, so DOJ impaneled a grand jury and got a subpoena. He didn’t comply with that either, and in June, DOJ’s top national security counterterrorism official, Jay Bratt, went to Mar-a-Lago to follow up. Trump gave back some more, and at least one of his lawyers signed a written statement asserting that all material marked classified had been returned. Subpoenaed surveillance footage, and possibly a tip from someone close to Trump, indicated that he hadn’t returned it all, so about two months later DOJ got a search warrant.

They must have known this action, unlike their previous efforts, would attract attention. But still, they didn’t announce it or tell the media in advance. Trump broke the news that night.

For argument’s sake, let’s assume the worst of Hillary, say the FBI was wrong, and her email deletions were an intentional effort to conceal evidence. Even in that case, deleting emails means any information security threat was over. By contrast, Trump was keeping national security secrets in a highly unsecured location, one where foreign spies had been caught before.

Trump, unlike Hillary, forced the government into a choice: either allow an information security threat to persist in defiance of the law, or act to retrieve the sensitive material (with a legal search warrant, after months of trying quieter means in deference to Trump’s status as a former president). From the perspective of both national security and rule of law, the latter is better.

5–Imaginary Hillary

As French acknowledges, if federal law enforcement sticks to the Hillary rule it still could lead to an indictment for Trump, because his actions, especially concerning obstruction, were worse. But even if DOJ treats Trump better than Hillary, it won’t satisfy the vast majority of Republicans. Conservative politicians and media have spent years presenting Hillary as some sort of master criminal, one who has gotten away with literal murder. No matter how many times these conspiracy theories get debunked—no, she didn’t kill Vince Foster in 1993, or Seth Rich in 2016, or run a child sex trafficking ring out of a pizza place—the impression persists. It’s based on personal dislike, not facts.

If we prioritize evidence, Trump is worse, and it’s not close.

I don’t mean that you should prefer Hillary’s policy positions, or her public demeanor, or regret the outcome of the 2016 election, or anything like that. I mean Trump’s actions, judged by consistent standards, are more concerning than hers.

Set aside various other differences between Trump and Hillary and focus on the topic at hand: information security. For Hillary, it’s the emails. For Trump, there’s the Mar-a-Lago documents, which already looks worse. But there’s a lot about it we don’t know, so let’s generously say those are approximately equal.

For Trump, there’s also conducting a national security meeting on North Korea at Mar-a-Lago in view of club members and their phones.

And there’s the time he told the Russian ambassador and foreign minister very sensitive Israeli intelligence, sending American and Israeli officials scrambling to protect a source embedded with ISIS.

And he conducted government business on his personal cellphone, despite warnings that it exposed him to foreign surveillance.

And Jared Kushner—who Trump made a senior advisor with full security clearance even though he failed multiple background checks—used private email accounts and a non-government messaging app for White House communications, including with foreign contacts, as did Ivanka Trump.

Each of those was arguably a bigger problem for American security on their own than Hillary’s emails. Together, they’re clearly worse.

People who chant “lock her up!,” or who rushed to defend Trump and denounce the FBI before knowing any details about the search warrant, are not looking for fairness. They want Trump to be able to do whatever he wants without consequence because they like him and/or hate his political opponents. Law enforcement should not base decisions on trying to satisfy them.

6–Prosecute Trump?

There’s a plausible argument for not prosecuting Trump under the Espionage Act, as Hillary was not. Going to court would likely require the government to reveal some of what Trump took to prove that it was sensitive national security information, which undermines the point of recovering it.

For that reason, the government usually prefers to resolve these cases quickly and quietly, as it did, for example, with General David Petraeus. While serving as CIA Director, Petraeus had shared classified information with a woman who was writing a biography about him (they were also having an affair). He pleaded guilty to a misdemeanor, getting two years probation and a $100,000 fine.

But Trump has shown no interest in admitting even partial guilt nor resolving things quietly. If anything, the opposite. If he wanted to, he could have cooperated with investigators, as Petraeus and Hillary did, instead of defying a subpoena, unleashing a series of incendiary lies, riling up supporters—even to the point of violence—and sending a message to the Attorney General that people around the country were “enraged” by the Mar-a-Lago search, sounding close to a mobster threatening “it’d be a shame if something happened.”

That gives DOJ greater reason to bring charges, and exposes Trump to an indictment for obstruction, which Hillary and Petraeus did not get. But for argument’s sake, let’s stretch the “Hillary rule” and say her decision to delete some emails didn’t lead to obstruction charges, so Trump’s more blatant and extensive obstruction shouldn’t either.

Even if we do that, it doesn’t resolve the broader question of criminal indictment. Using a private email server was the most serious crime that evidence indicates Hillary did. Trump, by contrast, conspired to defraud the United States in a multi-pronged effort to stay in power despite losing reelection.

Here a comparison to Hillary is especially useful. The day after networks called the 2016 election for Trump, Hillary admitted defeat and conceded. One day later, President Barack Obama hosted Trump at the White House as president-elect.

When networks called the 2020 election for Joe Biden, President Trump lied incessantly about the results, refused to concede, filed dozens of bad faith lawsuits, which he lost, and then, having exhausted all legal avenues, tried a coup. As the Jan. 6 Committee has shown, Trump pressured state election officials to create fake vote tabulations or send fake electors to the Electoral College; worked to get the Justice Department to lie and claim evidence of widespread voter fraud that didn’t exist; and instructed Vice President Mike Pence to claim powers he didn’t have and illegally reject state-certified Electoral College votes, even trying to use the January 6 assault on Congress as leverage.

As serious as mishandling national security secrets may be, conspiring to overthrow the Constitution is much worse. If U.S. law enforcement lets that slide, it makes self-coup attempts effectively legal, encouraging further attacks on American democracy. There’s no possible “Hillary rule” to protect Trump from indictment for that.