Hats Off to Hillary: Prosecuting Trump in the Shadow of Clinton’s Emails

Below is my column in the Hill on the recent focus on obstruction as a possible charge against former President Donald Trump. There is no question that the filings reflect a belief that the Trump team, and potentially Trump himself, engaged in obstructive conduct. That could be an easier case to make than a prosecution for the retention of material, including classified material, at Mar-a-Lago. However, Hillary Clinton’s case will loom large for many Americans in judging the basis for the prosecution, even on obstruction.

Here is the column:

Hillary Clinton recently hawked a line of hats and shirts with a mocking logo — “But her emails.” The taunt was directed at Donald Trump, who faces a real possibility of a criminal charge after the FBI’s search of his Mar-a-Lago residence.

While Clinton considers her prior conduct a subject of mirth, the FBI’s handling of her case will cast a long shadow over any potential prosecution of the former president, including the recent focus on an obstruction charge. There likely would be an assortment of “but her emails” objections to a charge that could have been made as readily against Clinton or her associates.

The appointment of a special master to examine materials seized in the Trump investigation has occupied much of the attention in the past week. Trump’s legal team’s belated request for a special master could help bring greater clarity to the raid’s scope and seizures. Yet it will not likely alter the trajectory of the case, which the Department of Justice (DOJ) has repeatedly stressed is an “active criminal investigation.”

What is notable is the government’s obvious effort to focus public attention on obstruction as a potential crime. Emphasizing obstruction, instead of the improper retention of classified material, could be seen as a way to navigate a political minefield to get to a prosecution. The reason, once again, is Hillary Clinton, who remains a complicating factor in Attorney General Merrick Garland showing the public that this is not about pursuing Trump but enforcing the law.

In its filings in the last two weeks, the most worrisome line for Trump came in the DOJ’s 36-page opposition to a special master’s appointment when it declared that “obstructive conduct occurred” at Mar-a-Lago in the months leading up to the Aug. 8 search. The DOJ also said it “has developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation.”

Those types of statements never bode well for a target, since they reflect a certain commitment to the prosecutorial path.

The value of shifting toward an obstruction case is that it would reduce the complications of any Trump claims on declassification or executive privilege to remove documents while he remained president. (The three cited statutes do not require classified status for a crime but two deal with the unlawful possession or handling of defense or sensitive information.) Trump has not fully explained how he allegedly declassified all of this material. Under Section 1519, the government can prosecute someone who “knowingly conceals any document with the intent to obstruct” their investigation.

The filings do not indicate that the government has evidence of knowing concealment by Trump, but it cited various representations made by lawyers on his behalf.

Trump might be familiar with such cases because he pardoned Jesse Benton in the final days of his administration. Benton, who managed Ron Paul’s 2012 presidential campaign, was convicted of violating Section 1519 by concealing campaign payments from the Federal Election Commission. Ironically, Trump signed that pardon as his staff was preparing to leave the White House, including having these boxes packed for transport to Mar-a-Lago.

While the released evidence would clearly support a charge of obstruction, it is unclear what acts were knowingly taken and by whom.

A criminal charge of obstruction against Trump would offer certain political benefits for Garland. As previously discussed, the government has routinely elected not to prosecute high-ranking officials for improperly removing classified material or has sought mere misdemeanor charges in the most egregious cases.

Prosecuting Trump for a misdemeanor for possessing or removing classified documents would seem gratuitous, while prosecuting him for a felony would raise questions of biased or selective prosecution. After all, in 2016, Hillary Clinton had not just 113 documents containing classified material but some documents “classified at the Top Secret/Special Access Program level” on her private email servers. (In Trump’s case, the government allegedly found roughly 100 documents in the Mar-a-Lago raid in addition to roughly 150 handed over by the Trump team under an earlier subpoena.)

Clinton’s documents were even more vulnerable to being compromised via her unclassified email account and, according to the FBI, “hostile actors gained access” to some of the information. Yet she was never subjected to a raid, let alone a charge.

Yet, while less glaring as a contradiction than the charges on the possession or handling of classified information, an obstruction charge would allow up to a 20-year sentence and could be brought with misdemeanor charges on the mishandling or retention of classified information.

Thus, an obstruction charge against Trump would be prosecuted in the shadow of Hillary Clinton’s case. In addition to the transfer of top-secret and other classified documents to her private server, Clinton and her staff did not fully cooperate with investigators. During the investigations of her conduct, some of us marveled at the temerity of the Clinton staff in refusing to turn over her emails and other evidence to State Department and DOJ investigators, including laptops holding suspected classified information. The FBI had to cut deals with her aides to secure their cooperation.

Later, more classified material was found on the laptop of former congressman Anthony Weiner (D-N.Y.), who was married to top Clinton aide Huma Abedin — 49,000 emails potentially relevant to the Clinton investigation.

After Congress sought these emails, Clinton’s staff unilaterally destroyed thousands of emails with BleachBit. Clinton was aware that Congress and the State Department were seeking the emails in 2014. Her lawyers turned over about 30,000 work-related emails to the State Department and deleted 33,000 others while insisting they unilaterally deemed them “personal.”

Garland may be able to make a case against Trump and show that it is indeed distinguishable from the Clinton case and others. What has been alleged is undeniably serious, including the alleged failure to comply with an earlier subpoena and false statements. However, Garland must address the legitimate concerns of millions of Americans that the same office involved in past Trump investigations — with documented instances of false or misleading statements — is leading this new effort. There also is the great concern over the Biden administration charging a prior and possibly future political opponent.

Any criminal case should be based not only on unassailable legal theories and facts but on clear consistency with past cases. That case will turn on still undisclosed evidence of what was known about the contents of the boxes found at Mar-a-Lago and how the documents were handled after the Trump team learned of the FBI’s investigation.

With Hillary Clinton selling “But Her Emails” hats at $30 a pop, Merrick Garland will have to explain the prospect of one politician going to jail while the other goes retail.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.

259 thoughts on “Hats Off to Hillary: Prosecuting Trump in the Shadow of Clinton’s Emails”

  1. “S. Meyer obviously can’t help himself; he always responds. He behaves like a child.”

    But Anonymous the Stupid replies in the AM, PM, and in-between with junk.

  2. Egad, you’ve become such a pathetic partisan hack, Turley. You’ve never addressed the wrongfulness of Trump’s: 1. stealing documents after being told by the NARA and Pat Cipollone and Pat Philbin that he couldn’t; 2. refusing initially to return them; 3. scooping up 15 boxes of materials and voluntarily turning them over, which included newspapers and magazines; 4. his attorney lying by saying all had been returned; 5. then, more NARA documents were found in multiple locations at MAL, including a desk, closet and other unsecure locations. You have repeatedly made the lame, legally-unsupported argument that the DOJ should have sent another subpoena, without explaining how or why a second subpoena would obtain better results than the first subpoena. You’ve never even come up with any cogent argument as to WHAT possible innocent reason Trump would have for stealing these materials in the first place. You’ve totally ignored the fact that: 1. Trump publicized the search warrant, not the DOJ; 2. Trump is portraying himself as a “victim”, when it was his stealing of these materials in the first place that triggered the search that you continuously characterize as a “raid”, in order to rile up the disciples; 3. Trump has dragged his feet and lied about returning the documents, which eliminates any claim of error or mistake; and 4. that he has been using this incident for political and financial gain.

    And, as to your assignments to promote the Fox media “whataboutsim” narrative that it hopes will cause undecided voters to somehow believe that Trump is somehow a victim of his deliberate theft of government documents: Hillary Clinton DID NOT STEAL government documents. She negligently allowed materials to be sent to her home e-mail server, but never had any INTENTION to take things that she shouldn’t have. Negligent conduct is NOT criminal conduct. The DOJ made that clear when it announced that she would not be prosecuted. So, why can’t you and Fox let it go, Turley? It’s because you KNOW there’s no defense for Trump’s endlessly egregiously outrageous behavior. On some level, you KNOW that Trump has very likely compromised national security. On some level, you know that Trump likely stole these papers to use as leverage to try to either avoid prosecution for inciting the Jan 6th insurrection by pushing the Big Lie and colludig with the Proud Boys and others, or maybe even to leverage his way back into office by threatening to disclose them to Russians, the Chinese, North Korea, Iran or other malign actors. There’s no logical or legal equivalency to Hillary Clinton’s situation and your efforts to equate the situations is just punditry. You DO know better, Turley.

    1. You obviously have no clue, or choose to ignore, how classified documents are supposed to be handled. If you believe Clinton’s mismanagement of the multitude of classified documents she held on her unsecured server is somehow OK then you are nothing more than a Clinton appologist. Most assuredly, you have no interest in ensuring the security of classified materiel by every US citizen who has access to such documents.

  3. Turley is a bit disingenuous. His hatred of Trump is showing.
    And to be fair, Turley never hid his dislike of Trump while he supported him in terms of the law.

    The reason I say this is the appointment of the special master and what they will find.

    The majority of the documents swept up from the raid were personal and confidential in nature. Not government property or classified.
    As Turley and other talking heads have repeatedly suggested is that the warrant signed for the raid was overly broad. Thus there are clear 4th Amendment violations of Trump.

    Based on evidence Trump’s legal team had presented, along w the NARA documentation… Had the warrant been to recover documents from that locked storage room only and ignored the rest of the residence… the FBI/DoJ would have been on stronger ground.

    When the final numbers are in… this raid will look like yet another attempt to spy on Trump and some would say… to recover de-classified documents surrounding Crossfire-Hurricane. So w the wide net, you run afoul of 4A and thus everything is thrown out. But that won’t stop the FBI/DOJ from leaking what they can.

    So while Biden’s corrupt DoJ / FBI could and probably would attempt to go after Trump on Obstruction… they could never win at trial.
    (Turley aptly pointed to the ham sandwich argument. )

    Sorry Turley, the law is pretty clear on this… even based on what was leaked in the press as to the numbers and what was taken. (Admission by the FBI)
    The raid’s results will be tossed in a pre-trial motion. Assuming Trump is actually charged.


  4. Soooo… you believe the FBI when they say they have evidence of obstruction… you need to get anothe line of work! It will all come out as another hoax, and once again, you will have egg on your face.

  5. I would like JT explain why the FBI would sieze Trump’s medical and tax records . I see nothing but pure political shenanigans with the broad overreach in their search warrant .

    1. @tip66

      The warrant said to grab anything and everything in proximity to anything marked ‘classified’.
      So if they found a ‘classfied’ doc in a room. Then all docs in that room were fair game to take so they took them.

      This is why the raid was a violation of Trump’s 4A rights.

      This is why if they ever do charge Trump… it would fail out the get go. Nothing from this raid would be admissible.

      Now for a twist.
      Ask yourself… ok, if they are smart people who wrote the warrant… why did they do that?
      It could mean that they intentionally wanted to tank this from a trial, or tank any thought of a trial. If true, then why execute such a warrant?

      If not to go to trial… then to spy on Trump?
      Harass Trump?
      Force Trump to not run in 2024?

      A couple possible ideas, but none legal.

      PS No, not a conspiracy nut, but thinking thru the possibilities.
      Was the DoJ/FBI too arrogant to think that they could grab everything and not get caught?
      Did the DoJ/FBI want to know what Trump still had on them?
      Did they want to punish Trump using the NARA request as an excuse?

      Did the DoJ/FBI want to use this to spy on Trump, yet make what they found inadmissible for a future potential trial, and thus remove any chance of Discovery against them?

      Each of those questions have a non-zero probability.

      1. SIR, not sure your profession but you should be AG. you have some major smarts. your assessment is super good. i like you think the raid was what ulisted at last, to harrass trump throw nails in his potus path or just maybe being a holes that hate trump. i have confidence in americans to see this for what it is an was. AN ATTEMPT TO PREVENT TRUMP FROM BEING POTUS. WHY??? they are deathly afraid of a 4 year lame duck term as president by the man with balls the size of jupiter.

        lame duck part is the scary part. they know he cant run again so he will be like the HONEY BADGER(STEVEN BANNON” TAKE WHAT HE WANTS WHEN HE WANTS AN HOW.

        DEO VINDIC

  6. Still waiting for Bathhouse barry to turn over his 500,000 documents taken (and never returned) for his so called presidential library.

    Then again, why did the FBI take 3 dozen panties belonging to Melania Trump

  7. Flaccid commentary. In fact, what Hillary did was 1000x worse. Why? She engaged in an ongoing campaign to prevent FOIA discovery of any of her communications while SecState. The idea that she could essentially opt out of using State dept sanctioned email and set up her own server that she owned, on her property? Unheard of in govt and entirely different than the occasional use of say a Gmail account for work purposes. And she got away with it. FOIA requests during her entire time on govt never reflected the emails stored in her server – this is an ongoing conspiracy. Many counts, felonies. Each FOIA request she knowingly didn’t produce docs for is a separate count. She was warned, trained and informed many times what she was doing was problematic from a security and legal POV – and she just ignored it all.

    1. Jim Comey and Loretta Lynch were members of the same lawfirm that did the Clinton’s taxes in the 1990s. This is most likely when criminals met criminaly.

  8. Fat Donnie truths earlier today: ” “Now that the FBI and DOJ have been caught in a massive and determinative Election Rigging Scam, are they going to change the results of the 2020 Presidential Election? They should!!!”

    Sure Donnie they’ll get right on it.

  9. HRC: An arrogant, self-satisfied, self-promoting, hubris besotted wretch of a human being. The epitome of moral and ethical turpitude. The choice the electorate had in 2016 was to decide which of the two was worse.

    1. Hahahaha. I chose neither because I wanted the best candidate. The Left accuses persons like me for Trump’s winning in 2016. But that isn’t mathematically possible. Trump won because of those who voted for him, not because of those who didn’t.

      1. He lost the popular vote by 2.1% yet won the electoral college by 13%. That’s effed up big time.

        1. That’s called ‘federalism’. You should read the constitution of the country you live in, I think it would be illuminating. Our founder wanted nothing to do with direct democracy, which is just mob rule.

          1. “Democracy is the pathetic belief in the collective wisdom of individual ignorance.” H.L. mencken.

        2. If you don’t understand why we have the electoral college it’s because of people like you

        3. Rod, the Constitution deliberately avoids employing the Popular Vote to elect a President, in order to represent the disparate interests of all 50 states.

          The more people concentrate in cities, the more likely the popular vote could be determined by Los Angeles and NYC. Should it ever come to pass that the Electoral College is either abolished, or forced to follow the popular vote, then 3 or4 cities will be king/queen makers, and the rest of the country wouldn’t be of any concern to any future president. Candidates would no longer bother campaigning in Iowa, Ohio, or Wyoming. They wouldn’t learn what farmers and ranchers need to feed America. It would become like the Hunger Games. 47 or 48 states would become Districts, stripped of all resources, dumping grounds, while a few cities would be like the Capital. Future presidents would only represent the interests of a few cities

          Human nature being what it is, it has historically been generally bad to remove the voice of entire regions of a nation.

          Under the Electoral College, any state can become a swing state, and will be ignored at the candidate’s peril.

          1. RE:”Rod, the Constitution deliberately avoids employing the Popular Vote” The response ‘That’s effed up, big time’ ought to tell you something. The fact that you found it necessary to take the time to explain the how’s, why’s and wherefores of the Electoral College System should tell you something else. However you did leave out the inherent reason why the ‘Founders’ created it and that’s a tad more controversial. Somehow, that didn’t didn’t evolve to the present day though some might argue otherwise. As to Rod’s dilemma, Bill Clinton urged his wife to campaign in Wisconsin. She did not heed his advice. That that may have made all the difference remains unclear. https://ecommons.udayton.edu/cgi/viewcontent.cgi?article=1115&context=pol_fac_pub

      2. Kidrambler:

        How vote splitting works is that people vote for a third party that does not have sufficient support to win. This bleeds votes away from the major political party they would otherwise have voted for, allowing the opponent to pull ahead.

        So, yes, if you are a Democrat who voted for someone other than the Democrat nominee, then you contributed to Trump winning in 2016.

        Thank you. Please continue denying your effect on vote splitting in 2024. There will be many alternative candidates for you to choose from.

      1. “The electorate chose Clinton. It’s the electoral college that elected Trump.”

        ATS, you fail to recognize the rules set up before the voting took place. If the rules were different, Trump would have spent more time in California and the like campaigning to bring out the vote from people who knew their vote, based on the electoral process, didn’t count.

        Maybe you cannot think more complexly than you do, but if the popular vote would lead to a win, you might believe Trump would have lost the popular vote. Others disagree. I think it would have been a win for him.

        Authoritarians often alter the voting process to make sure they win.

  10. The DOJ’s affidavit relies in part on 18 USC 273(e): which defines its scope as applying to “any document . . . relating to the national defense . . . which information the possessor has reason to believe could be used to the injury of the United States[.]” [https://www.law.cornell.edu/ uscode/ text/18/793] So, as to any document, the DOJ would need to prove both a connection to “national defense” and its importance. Sec 273(e) forbids the “possessor” of such a document to “willfully communicate” it to a person not entitled to receive it. There is no reason to believe this happened. But the statute has an even broader clause that forbids willful retention of the document, coupled with a refusal to release it “upon demand” to “an officer . . . entitled to receive it.” The enemies of Trump hang their hats on this clause. But the co-operation of Trump with the FBI in January and May 2022 militates against a finding of a willful retention of defense secrets. What purpose would he have? It is not even clear that a “demand” was made specifically for “defense related documents”. Probably not. The DOJ’s Affidavit seemingly conflates “defense related documents” with “Presidential Records”. [Case 9:22-mj-08332-BER Document 102 Entered on FLSDDocket 08/26/2022=0]. This suggests that the DOJ’s strategy is to blend the PRA with the Espionage Act to create a crime that neither of them supports alone.

    1. “The enemies of Trump hang their hats on this clause. But the co-operation of Trump with the FBI in January and May 2022 militates against a finding of a willful retention of defense secrets.”

      USGuv has been trying to get these records returned for 15 months, I think they got tired of being jerked around by the buffoon.

          1. ATS, in your present response and elsewhere, you continue to engage in appeals to authority. You think, that if Kerr is a conservative law professor, all conservatives should accept what he says as true. The facts are what count. Not whether or not he is a conservative. ( Not important: Didn’t he clerk for Justice Kennedy?) Your appeals are numerous, while your facts are very slim.

    2. “the co-operation of Trump with the FBI in January and May 2022 militates against a finding of a willful retention of defense secrets.”

      He was subpoenaed for ALL the remaining documents, and he clearly failed to turn them ALL over. That’s willful retention.

      “The DOJ’s Affidavit seemingly conflates “defense related documents” with “Presidential Records”.”

      It doesn’t.

  11. Thing is what’s not in the empty folders……cant punish without a dead body……maybe the empty folders contained…. How a plane with active nukes flew over the usa! Maybe the empty folders contain info how unwell our nuclear secrets really are….or maybe George has really good reflexes. Or maybe the empty envelopes are the smoking gun….how building 171 at Kelly afb….had so much als? The secret recipe the orb uses too off their critics……I bet he emptied those “secret” pouches to join with the ppl who keep!? coming down with als…..mysteriously….But not all that mysterious…..oh wait their guess as as good as mine. …no he must have sold that info…..because instead of making america great he secretly intend s to enrich hims sellf……because he’ll get rich of course if america .fails. That’s right he wants america to fail….because that will make him rich…..he’s to stupid to realize if america fails…the world fails….But come on he justly in it to be enriched…….Biden doesn’t wAnt us to critically think. Delusional or not I believe those empty folders..are evidence of ducking the American people. And our gov is…..just look how they buried asl at Kelly afb. How they use als…..to silence….people with clearances…..look at their ask and paranoid schizophrenia roles. ….red ipsa….the thing speaks for itself.

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