The DOJ treated Trump differently

That is, it gave him much more favorable treatment than a typical defendant would have received:

In reality, however, the notion that the DOJ is selectively prosecuting Trump for political reasons is not merely wrong but the very opposite of the truth: As a matter of fact, the federal government has been affording Trump extraordinary leniency, likely as a product of political considerations.

To appreciate this, it is helpful to contrast the DOJ’s treatment of Trump with its handling of Asia Janay Lavarello, a former civilian employee of the Defense Department.

In 2020, Lavarello was on assignment at the U.S. Embassy in Manila, where she had been researching a classified thesis. Her work drew on other scholarly research that was also classified. She had been conducting the research in a secure information facility at the embassy until COVID-19 shut it down. Shortly thereafter, she brought three classified theses back to her hotel room. That night, she held a dinner party at which a guest discovered the classified documents and confronted her about them. She returned the documents to a safe at the embassy two days later but failed to return them to the secure information facility specifically. For this, the DOJ charged Lavarello with unauthorized retention of classified documents and sought to put her in prison. Ultimately, they reached a plea bargain that put her behind bars for three months.

Compare this to the conduct for which the DOJ did not charge Trump: Upon leaving office, the ex-president brought more than 300 highly classified documents to his private residences, including top-secret materials detailing atomic secrets and national security vulnerabilities; he retained these documents for about a year despite government requests for him to return them. His own public statements indicate that his retention of those documents was willful, and he repeatedly expressed a sense of entitlement to their possession, saying that, as president, he had the power to declassify those materials “even by thinking about it.”

Nevertheless, as late as January 2022, the Justice Department was still giving Trump the opportunity to avoid charges by returning the documents he had taken. The indictment released last week makes this point clear.

In January of last year, in response to a subpoena, Trump returned 197 classified documents to the federal government. Despite his willfully retaining those documents for months, the federal indictment released last week does not charge Trump in connection with any of them — which is to say, the DOJ gave Trump a pass on 197 potential counts of willful retention of national defense information. Instead, it charged him with only 31 counts corresponding with the number of highly classified documents Trump knowingly withheld from the government in January 2022 and the FBI later obtained.

To review: Lavarello removed three classified dissertations from a secure information facility amid a pandemic that prevented her from accessing that facility. She kept the documents in her hotel room and did not deliberately show them to anyone. She then voluntarily returned them to a locked safe at the embassy within a matter of days. The DOJ chose to charge her and seek a prison sentence.

Trump, meanwhile, removed 197 highly classified defense documents from the White House. There is reason to believe he might have shared some of those documents with private citizens since he has been caught on tape sharing other highly classified documents in his possession with friends. He refused initial requests to return the documents, and he retained them for about a year. The DOJ chose not to prosecute him for doing so since he did eventually return them (after being legally compelled by a subpoena).

There is no substantive reason why Lavarello’s removal of three classified dissertations from an embassy for a few days deserves to be punished more harshly than Trump’s retention of 197 highly classified documents for months. It is clear, therefore, that the Justice Department prosecuted the ex-president much less aggressively than it would an ordinary citizen under the same circumstances. 

OK, but didn’t Clinton and Biden get even more favorable treatment for their countless crimes?

The idea that Trump is guilty of nothing Clinton didn’t do is similarly baseless. The conservative narrative on this point goes (roughly) like this: In 2016, then–FBI director James Comey concluded that Clinton’s discussion of classified information over a private email account and server during her time as secretary of State constituted “potential violations of the statutes regarding the handling of classified information,” but he insisted that “no reasonable prosecutor would bring such a case” given the relevant evidence and context. Yet, conservatives argue, when the FBI uncovered evidence of similar violations committed by Trump, “reasonable” prosecutors decided not to extend him the same charity.

Any resemblance between the Clinton and Trump cases is wholly superficial. Clinton did not willfully retain classified documents; she discussed classified information over a private email account. When the government asked Clinton to hand over all work-related emails sent from her personal account, she and her lawyers made a good-faith attempt to do so. Her lawyers did famously delete 30,000 emails they had deemed personal and not work related, and some of those turned out to include work-related material. Trump evidently saw this as analogous to withholding select classified materials from the government, suggesting his lawyer should emulate Clinton’s and cover for his obstruction of justice the way Clinton’s lawyer had kept her out of trouble “because he said that he was the one who deleted them.”

Yet as Comey stated in 2016, there is no evidence that Clinton’s deletion of work-related emails was intentional. It was not logistically feasible for her lawyers to read every single one of the thousands of emails sent from her account. Instead, they sought to screen for work-related materials by using various search terms, and some ended up falling through the cracks. Clinton’s team would have had little incentive to deliberately withhold relevant emails since any message she sent to other government officials would be recorded on their own government email accounts. This is indeed how the FBI found many of the missing messages.

Most important, Comey’s rationale for not charging Clinton was that the government did not typically prosecute such mishandling of classified information unless it involved “clearly intentional and willful mishandling of classified information” or “efforts to obstruct justice.” They found no “clear evidence that Secretary Clinton or her colleagues had intended to violate laws governing the handling of classified information” or attempted to obstruct justice. One implication of Comey’s remarks was plain: The government would normally prosecute someone for mishandling classified information if it did possess evidence that their lawbreaking was intentional and/or that they had attempted to obstruct an investigation.

If conservatives truly wanted the DOJ to uphold the standard Comey set in 2016, they would want the Justice Department to prosecute Trump.

Comey’s statement conveyed the opposite impression of what he intended, because he considered himself a master of public relations while having no idea what he was doing, but he was clear that nobody would be prosecuted for what Clinton did.

Whether you compare Trump to ordinary citizens or other politicians, Trump was given unusually lenient treatment. He’s just such a hardened criminal and had such an intense belief in his own impunity that he got prosecuted anyway.