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.
There are those who post on this blog who can not explain away why Hillary used bleach bit on her laptop or destroyed her phones with a hammer. Are these actions done by someone who wants to cooperate or by someone who has something to hide. One might expect that such actions would be performed by a child porn addict but not by a Secretary of State.
TiT,
“ There are those who post on this blog who can not explain away why Hillary used bleach bit on her laptop or destroyed her phones with a hammer.”
It HAS been explained multiple times. Those things are standard procedure. The FBI never claimed those actions were improper. Even the republicans investigating the issue couldn’t say it was illegal.
Does anyone think Anonymous’ response makes him sound credible?
That’s your response.
It should be yours, at least silently, so you could start building up your credibility. Presently it is at a low and continuing to fall in the minus territory.
Anonymous, why are you talking to yourself? Are you ok?
Ha, Ha. You are copying the words of anonymous and he, I am told, has no imagination. This gets worse and worse for you guys.
Seriously are you ok? You’re clearly talking to yourself.
He talks to himself daily, lookinig in the mirror and criticizing his reflection.
Not one word of it.
The old “what about” defense returns. Will it work this time for the Trumpet?
It’s called “Consciousness of Guilt: Suppression and Fabrication of Evidence.” In California it’s California Criminal Jury Instruction No. 371 “If the defendant tried to hide evidence…that conduct may show that (he/she) was aware of (his/her) guilt….” Similar jury instructions exist in the other states.
And that is exactly what Clinton and her people did, and it’s exactly the reason why she did it. A person would need to have their head buried pretty deep in the sand to deny this.
The attempted railroading of the Trump’s shows in glaring detail that the process of determining who warrants investigation and prosecution is nebulous at best.
This corrupt use of descretion is desperately in need of reform.
I have a hunch doesn’t cut it.
“ There also is the great concern over the Biden administration charging a prior and possibly future political opponent.”
Why would it be a concern? Trump is not political opponent. He’s a private citizen subject to the laws of this nation like everyone else. Whether he’s possibly a future or past candidate I’d completely irrelevant.
Yes, much like Biden was a private citizen when Trump was impeached over alleged targeting of a “potential” political rival.
That didn’t seem to make it ‘completely irrelevant’.
The difference lies in provable criminal conduct. Trump fills that criteria. Biden does not.
Except, the reason Trump’s ‘conduct’ was considered criminal by the House that impeached him was that his conduct was, in their view, directed against a potential political opponent. Recall that the impeachment was over a phone call Trump had with the President of Ukraine. No one alleged that Trump didn’t have the legal authority to talk with Ukraine. Nor did anyone argue that Trump didn’t have the legal authority to set our foreign policy with respect to Ukraine. Nor did anyone argue that corruption in Ukraine was a proper concern for the US government — particularly if that corruption may have involved US citizens and US government officials. But, the Democrats in the House argued that, while it might be, in general, legal for a president to talk with Ukraine’s president about our concerns about corruption, it was illegal for Trump to discuss those things because Trump’s motivations were all wrong. He didn’t really care about corruption. He just wanted Ukraine to dig up dirt on Biden, his potential rival in the next election. His alleged political motivation made illegal what otherwise would have been a legitimate call. Trump, they said, was using the powers of the presidency for personal political benefit.
Contrast that with what it appears the DOJ is preparing to do to Trump — charge him with obstruction in a dispute with the National Archives over which documents Trump may maintain as part of his post-presidency office. Obama had a similar dispute with the National Archives. It took years to resolve. Yet, there were no criminal charges filed against Obama nor his team. (For the record: No criminal charges should have been brought against Obama or his team — even though Obama’s dispute covered far more documents and many of those documents were classified.) Many Democrats, both elected officials and members of the public, have been encouraging the DOJ to charge Trump with something — anything — in the hopes that a conviction would bar Trump from running for president in 2024. How would such an action NOT provide Biden with a personal political benefit?
“ He just wanted Ukraine to dig up dirt on Biden, his potential rival in the next election. His alleged political motivation made illegal what otherwise would have been a legitimate call.”
It wasn’t just a call. It also involvesd withholding military aid in exchange for cooperation. THAT’s why he was impeached. Trump never released the full transcript of the call. Which it should be. We all know Trump is fond of lying if we are to accept his account of the call we should be able to read the whole transcript, remember he declassified ALL of those documents, that includes thr entire transcript of that call.
Nothing you wrote in response changes the fact that the ONLY reason Trump’s actions were considered illegal by the House was because they deemed them to be targeted at Trump’s potential rival in the next election. As with the call itself, it was legal for Trump to withhold military aid to another country. Obama did it to Israel and Poland. Congress and the American public might have disagreed with Obama’s decisions, but there was nothing illegal about them. The same should have been true for Trump. The House said Trump’s otherwise perfectly legal actions were illegal because they read his mind and knew he was trying to gain private political benefits from his use of presidential power. By that standard, the House should impeach Biden over his use of the military as a prop for his perfectly political speech last week. It is okay for the Marine Corps Band to play Hail to the Chief when the President enters the room, just not at political events.
Again, other past-presidents have had disputes with the National Archives over which documents they could keep, and none of these past-presidents have been prosecuted criminally as a result of these disputes. (Which makes sense, since the Supreme Court held that the former president gets to decide which documents are ‘personal’ and which are ‘presidential’. The question, they said, isn’t even reviewable by the courts. The law does not give the National Archives authority over a former president’s personal documents. So, unless Trump is trying to keep a document that Trump has determined is presidential, not personal, the National Archives has NO legal authority make Trump turn it over to them.) Why is Trump being treated differently than Obama? It is rational to believe that the ONLY reason Trump is subject to a criminal investigation over his violation of a non-criminal statute is because they are trying to prevent his running again. This is particularly true after Biden’s speech in which he declared Trump to be an existential threat to our republic.
Trump’s Faux Impeachment I, established that the House can impeach for any reason at all.
While the Constitutions provisions for impeachment are narrower, there is no enforcement mechanism.
Maybe the Senate could have voted to reject the Articles of impeachment and no conduct a trial.
But having done so they gave their impramatur to the House’s actions.
If Republicans take the house in November, they can impeach Biden because they do not like the color tie he wears. If they wish.
I expect that relations between the house and the executive will be incredibly frosty.
I expect lots of investigations. But despite a solid Basis for impeaching Biden. Garland, Wray.
I do not expect any impeachments.
There is only one reason the House should forward articles of impeachment on anyone to the senate
To tie up the senate.
I hope and expect large numbers of investigations by the house in 2025.
But republicans need to do a better job of making them look like real inquiry not a star chamber.
No matter how many fine words you use the fact remains the FBI/DOJ is hopelessly corrupt and bias against opponents of the Democrats. That is wrong, and must be punished.
“ 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.”
Turley is being deliberately disingenuous by leaving out the fact that her staff was seeking immunity from prosecution if they were to cooperate. The target was Hillary and the FBI routinely grants immunity for access to information that offers evidence against a bigger target.
Turley cited his column titled “Comey: Hillary aides refused to cooperate without immunity” as evidence, but his portrayal of non-cooperation is disingenuous due to the fact that the aides asserted their constitutional right not against self incrimination. I’m order for the FBI to have access to their laptops they were justified in making the deals which ultimately resulted in not finding any credible evidence that anything was compromised. Which is why Hillary was not charged.
Trump’s case is very different because he has publicly implicated himself so many times by showing intent to obstruct.
Hillary Clinton never had the right to declassify or destroy or share secret docs or the equipment to keep them.
And never will 🙂
Turley is a liar,
“ 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.”
Here’s the full statement which he manipulates the phrase “hostile actors gained access” to some of the information,
“ With respect to potential computer intrusion by hostile actors, we did not find direct evidence that Secretary Clinton’s personal e-mail domain, in its various configurations since 2009, was successfully hacked. But, given the nature of the system and of the actors potentially involved, we assess that we would be unlikely to see such direct evidence. We do assess that hostile actors gained access to the private commercial e-mail accounts of people with whom Secretary Clinton was in regular contact from her personal account.”
Hillary wasn’t “raided” because she was cooperating fully. She wasn’t fighting the DOJ and ignoring subpoenas. Trump on the other hand was. Trump’s whining about the unfairness of being raided and why Hillary’s wasn’t ignores the obvious fact that she was cooperating, Trump wasn’t and he was clearly lying to the DOJ.
You clearly don’t know what you’re talking about. Ther is zero doubt the classified information Hillary put on her server, along with everything else on that server, was distributed to intelligence services world-wide. Every significant agency had those emails and were monitoring the server for additional incoming email until it is secured or taken down.
Svelaz
“Turley is a liar ”
You are a guest on Turley’s blog.
Show some manners or go away.
God you are ugly.
Monumentcolorado, freedom of speech is par of making such accusations. I wouldn’t be complaining about manners when there are many here who engage in far worse conduct. I stand by my claim that Turley is a liar.
🙂
Turley spent a LOT of time focusing on Hillary’s handling of classified documents and insinuating constantly that she should be facing criminal charges over that and cited Comey’s own words, “ Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”
But here he is dead silent on that when it comes to Trump’s own extreme carelessness. If he’s going to be comparing Hillary’s actions to Trump’s he should at least admit Trump is just as guilty of the handling charges.
Dead silent?
The whole article is about this.
The lefties are energized today.
Any comparison of Trump and Hillary brings them to a hysterical pitch.
Remember George Romero’s zombies at the smell of live meat.
Same reaction; Same intelligence.
The lefties are energized today.
I don’t consider trolls posting the talking points given them, ‘energized’.
Many of you are, how shall we say it: missing the point.
Mission #1 for the Democrat party has been, and continues to be, get the Donald disqualified from holding any political office in the future.
Documents? This is how they’re going to ‘get Trump?’ Documents?
You’re the guy that gets hired for both sides ism, Jon. So I see you working. Thing is, there is no comparison between trump and HRC or any U.S. president in history for that matter. Obstruction is a given for now. Best case scenario…
But with a little time racketeering and espionage will follow.
“Garland may be able to make a case against Trump and show that it is indeed distinguishable from the Clinton case . . .”
That’s easy. He’s a R; she’s a D. Thus, he’s a political “criminal.’ She’s untouchable.
Hilary Clinton is a fine upstanding woman with high moral standards. She and Bill make the perfect loving couple. Why they’re always seen together publicly. Why they are just like Ozzie and Harriet.
Seems like Garland has painted himself into a corner. Don’t prosecute and he loses credibility. Prosecute and be accused of political prosecution.
“ 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.”
Turley is being so gentle in his characterization. When he says the value of shifting toward obstruction is that it would reduce the “complications” aka, lying on any Trump claims on declassification or executive privilege.
Turley predictably and pathetically goes for the, “but what about Hillary” excuses.
Hillary’s server was never determined to be unsecured. Unlike trump which the documents were stored in various places at his residence which is also A COUNTRY CLUB where various kinds of people are constantly going in and out.
The FBI found empty classified folders. We’re the documents removed? Lost? Sold? Compromised? That is a much more serious problem than Hillary’s since the Republican investigations never proved the information on her secure server was ever compromised. She cooperated with the investigations including testifying for 11hrs in front of a Republican committee. Trump on the other hand avoided cooperating as much as possible and spent a lot of time jerking around the DOJ and NARA which eventually ended up with a search warrant that proved he was lying and obstructing.
You swallow whatever the corrupt FBI/DOJ and CNN leak. How’d that work for during the Russia collusion hoax? How many times will you fall for these lies? You’re stuck on stupid.
“Hillary’s server was never determined to be unsecured”
One cannot be sane not recognizing the appearance of these secret documents on other computers (such as Anthony Wiener) proves differently.
Anthony Weiner received confidential documents from Clinton. Essentially official correspondence between the two. That doesn’t mean the server was unsecured. It just means Hillary sent an email from her private account.
Weiner only received 30-40,000 documents from Clinton that were not supposed to be distributed or on her private server.
Only a fool would think that those documents were correspondence between the two.
Anonymous, prove me wrong. Post the links showing your claim to be true.
It has been pointed out many times, but you don’t remember those things that contradict your foolishness. Why would it be any different now? Why waste the time?
Ironically, a mention of Hillary would remind people that Trump’s whole 2016 campaign was based on the proposition that he would do better with classified information than Hillary; and Trump won that. This has turned out not to be the case, not by a long shot, but nonetheless that fiction of Trump being better with classified information doomed us to suffer four years of Trump and President and these more years continuing to be subject to his constant nonsense.
Go back to sleep. Hillary was too busy buying Russian disinformation to stick on Trump after Vlad got ahold of her 30,000 deleted e-mails from her secret bathroom server, to be president anyways.
Wen was Blah blah ever awake. Clinton screwed up everywhere and dealt in Pay for Play when she wasn’t openly dealing with the Russians or Chinese.
“ Clinton screwed up everywhere and dealt in Pay for Play when she wasn’t openly dealing with the Russians or Chinese.”
Once again S. Meyer makes false claims. Obviously you don’t know what you’re talking about.
That is your usual comment, but I provide accurate facts while you provide garbage connecting words together leading to a meaningless or contradictory response.
S. Meyer, your “accurate” facts are devoid of proof. They are false claims. Prove me wrong.
One of the problems in making an obstruction charge stick (both politically and legally) against Trump is the fact neither he nor members of his team packed the boxes sent to Mar-a-Lago. The General Service Administration packed and shipped those boxes. It is hard to believe that Trump, or members of his senior staff, spent time reviewing what was in the boxes. While knowledge of what was in the boxes may not be required for an obstruction charge, any prosecution of Trump would be seen by large swaths of the population as trying to make Trump criminally liable for the GSA’s mistake in shipping to Mar-a-Largo documents Trump should not have had.
From a political standpoint I agree with you DK . . . but from a legal standpoint, an obstruction charge bypasses the packing, unpacking etc. issue. The facts of that type of charge would start after the documents were known to be at Mar-a-Lago.
Ken — I understand that knowledge is not always a legal defense against obstruction. However, it is usually a practical defense against an obstruction prosecution. In this case, Trump’s team gave the National Archives’ staff and the DOJ access to all the boxes that were in Trump’s storage locker at Mar-a-Largo. They combed through all the materials and packed up a lot of documents and took them back to Washington, D.C. They left behind several boxes of materials and asked that Trump’s team put another pad lock on the door. That was in June. Trump’s team promised to cooperate fully if the Archives had any additional questions or concerns. Given that context, unless it can be shown that Trump’s team had secreted documents elsewhere at Mar-a-Largo, it’s going to be really hard for the government to make the case that Trump has obstructed justice. He has a letter from the Archives thanking him for his cooperation!
Nor will it be easy for the government to make the case that Trump’s team lied when it said that Trump no-longer had any classified materials at Mar-a-Largo. To be a lie, it has to be a knowing misrepresentation of the truth. The GSA packed the boxes, the National Archives and the DOJ went through the boxes and removed all the classified materials from them, how were the members of Trump’s team to know that there were any classified documents left in the boxes? Their client, Trump, claims to have declassified all the documents that GSA was to send to Mar-a-Largo. But, even if that blanket declassification wasn’t effective for some or all of the documents, the GSA shouldn’t have sent any classified materials to Mar-a-Largo and the Archives and the DOJ should have removed any classified materials they found in June. Again, how would Trump, or any member of his team, have known that there were any classified materials left at Mar-a-Largo?
“In this case, Trump’s team gave the National Archives’ staff and the DOJ access to all the boxes that were in Trump’s storage locker at Mar-a-Largo.”
You do know that’s the exact opposite of the truth. Trump lawyers specifically denied access to several boxed when requested. Get your facts straight.
“ In this case, Trump’s team gave the National Archives’ staff and the DOJ access to all the boxes that were in Trump’s storage locker at Mar-a-Largo. They combed through all the materials and packed up a lot of documents and took them back to Washington, D.C. They left behind several boxes of materials and asked that Trump’s team put another pad lock on the door. That was in June.”
According to the FBI’s affidavit the Trump team prohibited the FBI agents from looking INTO the boxes that were in the storage room. It was AFTER that when Trump’s lawyers asserted to the FBI by signed declaration that all documents were turned in including classified documents. AFTER it was learned that was not true. The FBI issued a subpoena which Trump fought. AFTER learning still that remaining documents involved highly classified compartmented information did they issue a search warrant. Upon discovering that there were indeed more documents AFTER declaring to the FBI that there were no more the Trump team was not to be trusted. Highly classified documents were found in his office and a pool shed intermingled with a lot of other things, items of clothing newspaper clippings etc. The fact that they already lied is enough to have an obstruction charge. The fact that they found documents OUTSIDE of the locked storage room without anybody keeping track of who accessed them and when is a direct violation of the espionage act.
Trump’s violations and clear obstruction are far more serious than Hillary’s former problems. Turley is not making a convincing argument that the charges considered on Trump are not as serious. Turley excuses for Trump are shrinking every day Trump opens his mouth or the FBI releases more evidence. It’s an argument in attrition.
Mistake? Or perhaps high level entrapment.
If they (GSA) sent the documents to Maralago, something I didn’t know, even with Trumps unknowing consent, then turn around and prosecute him for it, sounds a lot like what they did in the Whitmere kidnapping entrapment scheme.
Given the overwhelming evidence against Hunter, AG Garland will allow him to be indicted for some low level criminal tax violation, to which he’ll plead guilty and pay a fine. Meanwhile, Trump will be indicted for a felony and with the jury pool in D.C. he’ll surely be convicted (heck, he could be charged with the Kennedy assassination and be found guilty).
The upside for the Biden’s is that the entire case file will forever be sealed, while Mr. Garland crows about no one being above the law.
As long as there is absolute or qualified immunity for public officials I don’t want to hear that no one is above the law.
So true.
Qualified immunity puts many a class of people above the law; by the clear wording of the statute, which provides for no such immunity, confirmed and judicially recognized constitutional violators are dismissed regularly, exactly because they are above the law.
If you can’t see a difference between what Hillary did – be lax with security protocols when doing her work – as Trump, Jared, Ivanka and all of them did using unsecure cell phones and apps and private servers and Republicans did not care one whit – and what Trump recently was found to have done which is steal government documents, many of them classified – and lie about returning them – then you really should not be a law professor.
Hillary wasn’t “lax with security protocols”, she intentionally circumvented them by setting up her own unauthorized and unsecured email server, which she used to transmit and receive classified information. Then, when her staff received requests from Congress or the public for copies of her emails on a particular subject, her staff would say that no emails responsive to the request were to be found on the State Department’s email server. That is, they intentionally misled Congress and the public by illegally avoiding disclosure of information as required by the Freedom of Information Act. When she was caught, she had her attorneys destroy over 30,000 emails that she claimed were personal rather than work related. (Later, when Anthony Weiner’s laptop was examined, learned that many of the destroyed emails were work related and contained classified information. That is, it was proven that Hillary’s team destroyed emails that they were under a court order to deliver to Congress and to members of the public who had sued to receive them.) There is no way that any fair observer would describe Hillary’s actions as merely lax.
As for Trump’s supposed use of unsecure cell phones, apps, and private servers, you’re making unsubstantiated claims. I don’t doubt that they did, occasionally, use unsecured electronic devices. However, that was true of Obama’s team and is true of Biden’s team today. It is simply part of the world in which we live. Officials may have a secure device for official work, but they aren’t supposed to do personal things with it. So, they all also have personal devices. It is in inevitable that, occasionally, what started out as a purely personal call will become work related when one of the parties says, “Oh, one more thing ….” Of course, the official should hang up and replace the call from a secure device before discussing that ‘one more thing’, but that doesn’t always happen.
As for Trump’s ‘stealing’ government documents, he simply didn’t do it. The GSA packed those documents up and shipped them to Mar-a-Largo. Was the GSA overly generous with which documents were sent to Trump? Maybe. In the view of National Archives officials the GSA sent to Trump many things that should not have been sent. But, how is any of that criminal? The National Archives had a similar disagreement with Obama, only it covered thousands of documents rather than the few hundred that are at dispute with Trump. In both cases, by the way, it was the GSA who packed and shipped the documents to the former presidents. So, why was Obama’s dispute with the National Archives treated as a civil matter and Trump’s was the subject of a criminal investigation? Obama had more documents than Trump and many of Obama’s documents were considered classified. It took years of negotiations before the issue was resolved between Obama and the National Archives.
So, again, why is Trump being treated differently? The answer appears to be entirely political. The Director of the National Archive is the one who made a criminal referral to the DOJ. The Director, now retired, is virulently anti-Trump. He’s said he made the referral because Trump cannot be trusted. He’s also said Trump never should have been president. He’s also said he needed to do all that he could to prevent Trump from being president again. So, because a government official hoped that a criminal prosecution of Trump might prevent him from becoming president, we are supposed to see this investigation of Trump as righteous?
One wonders what purpose Trump would have for keeping those documents in the first place? Much less, obstructing the Government’s efforts to retrieve them.
Yes that is the question Turley does not want anyone to ask which is why he points the finger in other directions – the FBI, Hillary, Hunter, etc.
“One wonders” why the Left needs so many “insurance policies.” Wouldn’t it be easier to just buy an umbrella plan? Or is that the plan behind Biden’s Big Brother speech?
“Umbrella plan”
Sam, good one.
Yup. Try Peter Strzok Insurance, LLC, (202) 000-0000
While, “yea, but look what she did” might carry some limited weight during sentencing, it’s hardly an affirmative defense.
It’s a horrible defense. He still has to explain why he fought to keep the documents. Just not giving up the documents that did not belong to him is considered theft.
When the FBI agents wanted to look in the storage room they were allowed but they were forbidden from looking into the boxes. That’s clear evidence of obstruction. Finding boxes of highly classified documents in his office also is a case of obstruction and mishandling documents.
His chances of being charged are very high.
Svelaz — You should get your facts straight before commenting. The National Archives and Obama had a disagreement over documents that Obama wanted to maintain at his post-presidency office. The Archives said Obama didn’t have a right to them. Obama claimed that he did. Obama didn’t simply turn them over. He fought to keep them. Was Obama guilty of theft? No! This was a legitimate dispute between Obama and the National Archives. The National Archives has similar disputes with virtually all presidents after they leave office. Trump’s dispute is similar to Obama’s, except it covers fewer documents. Many of the disputed documents in Obama’s case were also classified. It took years of negotiations, but Obama was eventually allowed to keep most of the documents in a secure location as part of his post-presidential office. The Archives considers those documents to be ‘on loan’ to Obama’s office.
I have no idea where you got the idea that the FBI was not allowed to look inside the disputed boxes. In June, staff from the National Archives and the DOJ (which may or may not have included FBI agents), reviewed the materials in those boxes. They were there for hours reviewing the documents. At the end of their review, they took several boxes of materials back to Washington, D.C. They allowed Trump to maintain possession of the rest of the materials, only asking that his team put an additional pad lock on the door to the storage locker. The Archives even sent Trump a letter thanking him for cooperating fully with their review.
I agree with you that Trump is likely to be charged. Given the facts, it will be hard to see how such a prosecution can be anything other than political. At this point in his post-presidency, Obama and the National Archives were still in dispute about which documents he could keep and which he could not. Many of the documents under dispute were classified. Obama had more documents than Trump has (Obama also served two terms, so you would expect him to have more documents). So, why is Trump being treated differently than Obama?
“ I have no idea where you got the idea that the FBI was not allowed to look inside the disputed boxes.”
It’s in the FBI affidavit that was released.
I’m sorry, but I’m not taking anything in the FBI’s affidavit at face value. They have demonstrated time and again that they are unwilling to act in good faith when it comes to Trump. They lied to the FISA Court to obtain a warrant. They then falsified documents when they went to get that warrant renewed. The FBI targeted Gen. Flynn in a successful attempt to have him removed from Trump’s administration. Comey gave Trump a misleading briefing on the Steele dossier, and then leaked the fact Trump was briefed to the media in an effort to cause the president-elect problems. Then, Comey leaked classified information in a successful attempt to get a special counsel appointed to investigate ‘collusion’ that Comey knew did not exist. That special counsel then hired rabid anti-Republican partisans to staff his office. Etcetera, etc. etc.
In none of this did the FBI act in good faith. Now, the same group that led the investigation into Trump’s ‘collusion’ with Russia is investigating his failure to turn over documents to the National Archives. I’m sorry, but if one of those involved with this investigation were to come inside soaking wet and claim that it is raining, I’d look out the window before believing him or her. I’m sorry because I don’t want to feel that way about the FBI. I want to be able to trust the FBI and the DOJ. But, the FBI is not supposed to be involved in determining who is the National Security Advisor. Nor should the FBI take actions in an attempt to get a special counsel appointed to investigate baseless charges against a sitting president — an investigation that cost taxpayers millions of dollars. Nor should the FBI have been doing much of what it has done in regards to Trump. Based on the hard evidence of the FBI’s and the DOJ’s actions, I simply do not trust them.
It is an affirmative defense, where similarly situated the same government entity goes after one defendant and leaves another alone gives a presumption of selective enforcement.
Such a defense would entitle a whole trove of discovery materials, which given what we know publicly, will likely show exactly that.
There is actually a suspect protected class people protected from political discrimination.