Your guide to the nonsense about Trump's federal indictment

Today, for the first time in American history, a former president of the United States will appear at a federal courthouse to be arraigned on criminal charges. The indictment against Trump alleges that he took hundreds of classified documents from the White House to his social club in Florida, where he stored them in cardboard boxes along with newspaper clippings and other miscellanea. The boxes containing classified materials ended up in storage closets, ballrooms, and bathrooms without meaningful security measures — all while thousands of people visited the club. 

The charges against Trump, made public by Special Counsel Jack Smith last week, related not only to Trump's retention of the nation's national security secrets, but also his efforts to conceal the materials from law enforcement. The indictment is devastatingly detailed, incorporating audio recordings, photographs, text messages, and contemporaneous notes. 

All told, Trump faces 37 charges related to violations of the Espionage Act, obstruction, and conspiracy. 

Nevertheless, millions of people are convinced that Trump is being railroaded. This includes supporters "planning mass protests" at the Miami courthouse today and promising to arrive "well armed." But it also includes an assortment of TV pundits, op-ed writers, and elected officials. 

Some of the arguments sound persuasive at first blush. But a closer examination reveals that none of them hold water. 

Argument 1: Hillary Clinton did the same thing

The Wall Street Journal editorial board called the indictment against Trump "destructive." The editorial argues that Hillary Clinton engaged in the same conduct when she used a private email server as Secretary of State. According to the editorial, then-FBI Director James Comey looked into the matter and found that “no reasonable prosecutor would bring such a case.”

It was wrong for Clinton to use a private email server to conduct official business as a member of the Obama administration. The communications of the Secretary of State, whether or not they involve classified information, is of interest to foreign adversaries. And a private server does not have adequate security. More broadly, like printed materials, communications produced as a public official belong to the public. And they should be stored and retained for the benefit of the public. 

Very few documents marked with any level of classification were found on Clinton's email server. Nevertheless, the FBI did find numerous emails that discussed classified national security information and, therefore, should have been considered classified. 

But there are enormous differences between Clinton's conduct and the alleged conduct of Trump. Specifically, the relevant section of the Espionage Act (18 U.S.C. §793(e)) requires the mishandling of national security information to be "willful." On July 9, 2016, Comey explained why charges were not appropriate in Clinton's case (emphasis added):

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.

The indictment against Trump includes evidence that the mishandling of classified information was intentional and willful. Specifically, in July 2021, there is an audio recording of Trump showing four individuals without any security clearance a classified "plan of attack" produced for him by the Department of Defense. Trump describes the document as "highly confidential." He showed the group the document anyway, even though he acknowledges he did not "declassify" the document as president and it remained "secret." There were similar incidents, not recorded on audio, in August and September 2021.

Further, according to the indictment, after a "grand jury issued a subpoena requiring Trump to turn over all documents with classification markings," Trump "endeavored to obstruct the FBI and grand jury investigations and conceal his continued retention of classified documents." Trump's effort included: 1. Suggesting his attorney lie to the FBI, 2. Directing his personal assistant to move boxes containing classified documents to hide them from Trump's own attorney and the FBI, and 3. Suggesting his attorney hide or destroy documents.

In contrast, when the FBI requested work-related emails from Clinton's personal server, Clinton, through her attorneys, produced them. Trump frequently cites the 30,000 emails Clinton's attorneys determined were not work-related and later deleted. But Clinton's work-related emails were sent to other people in the government. And the FBI also reviewed "the archived government e-mail accounts of people who had been government employees at the same time as Secretary Clinton, including high-ranking officials at other agencies, people with whom a Secretary of State might naturally correspond." The FBI found no evidence that any "work-related e-mails were intentionally deleted in an effort to conceal them."

In other words, had Trump simply turned over the documents when asked, he would almost certainly not be facing charges.

Argument 2: Joe Biden did the same thing 

The Wall Street Journal editorial board also complained that "Biden had old classified files stored in his Delaware garage next to his sports car." Biden's retention of classified documents is under investigation by another special counsel, Robert Hur, appointed by Attorney General Merrick Garland. But, like Clinton, Biden is unlikely to be charged because he has been cooperative. The investigation began not because of any request but because Biden voluntarily reported that classified documents were found at Biden's University of Pennsylvania office. A similar investigation into former Vice President Mike Pence, who improperly retained a few classified documents after leaving office, has already been closed without any charges. 

Argument 3: Bill Clinton's sock drawer exonerates Trump

A New York Post op-ed by Jonathan Turley suggests that Trump's best defense might be Bill Clinton's sock drawer. Bill Clinton's dresser was the subject of "a 13-year-old case in which the right-leaning nonprofit Judicial Watch sought access to 79 audio tape recordings of Clinton interviews conducted by the historian Taylor Branch while Clinton was in office." Clinton "designated the recordings as personal records, not official presidential records, that were therefore not required to be turned over to the National Archives and Records Administration under the Presidential Records Act." 

The case was dismissed, however, because the court found that it could not order Clinton to turn over materials to the National Archives. The line frequently cited by right-wing media is: "[T]he [Presidential Records Act] does not confer any mandatory or even discretionary authority on the Archivist to classify records. Under the statute, this responsibility is left solely to the President."

But the case against Trump does not involve determining whether the documents at issue are personal records that Trump can retain or a presidential record that should be in possession of the Archivist. Under the Espionage Act, the issue is Trump shared national defense information with unauthorized persons and failed to return the documents containing the information to government officials.

Argument 4: It's a dangerous precedent

"And what about the precedent?" The Wall Street Journal editorial board asks. "If Republicans win next year’s election, and especially if Mr. Trump does, his supporters will demand that the Biden family be next. Even if Mr. Biden is re-elected, political memories are long."

Biden is already facing a special counsel investigation of his handling of classified materials, and the Justice Department is already investigating Biden's son, Hunter Biden.

Further, either decision made by special counsel Jack Smith would set a precedent. Declining to prosecute, even after uncovering substantial evidence that Trump committed crimes, would set the precedent that a former president is exempt from federal criminal laws after leaving office, including the laws in place to protect national defense information. Prosecuting Trump sets the precedent that former presidents can be prosecuted after leaving office. Which is the more dangerous precedent?