Former President Donald Trump insists that he’s being unjustly criminalized for retaining documents from his time in office, while his predecessors and political opponents are being let off the hook for the same behavior. But that’s just not the case. Though other politicians have previously retained documents without legal consequences, Trump’s case differs in key ways, and that’s what drove prosecutors to seek the extraordinary federal charges against him.
In his first public remarks following his arraignment on 37 federal charges Tuesday, Trump made a series of inapt comparisons to cases involving his 2016 Democratic rival Hillary Clinton, former President Bill Clinton, his onetime vice president Mike Pence, and President Joe Biden. All four have faced questions about holding on to records related to their public service. If they weren’t indicted for retaining documents, he claims, then the only plausible conclusion is that he’s been singled out as the victim of yet another “witch hunt.”
That narrative might convince his followers to dismiss the indictment. But it’s false: None of those figures ignored a subpoena to turn over classified material concerning highly sensitive matters of national security and then sought to conceal it from federal officials and their own attorneys, as is alleged of Trump. And in fact, history suggests that if Trump complied with that request, as some of his peers did, prosecutors may not have pressed charges.
The case against Trump is not so much about the fact that he retained documents he had no right to keep — but that he allegedly did so knowingly and brazenly defying the federal government while putting US interests at risk. That puts Trump in a class of his own.
What happened in the Clinton emails case
The Clinton emails case became a flashpoint in the 2016 presidential race. Then-Democratic presidential nominee Hillary Clinton used a private email server located in her home as secretary of state, and emails in which she discussed classified information (but not classified documents themselves) were stored on that server. A total of eight emails were found to contain top-secret information.
There wasn’t any specific evidence to suggest that the server, though unsecured, had been hacked by “hostile actors,” but the FBI said it was possible. The agency found that Clinton and her team had been “extremely careless in their handling of very sensitive, highly classified information” and committed “potential violations of the statutes regarding the handling of classified information.”
In spite of all that, then-FBI Director James Comey — a registered Republican for most of his life up until 2016, when he described himself as unaffiliated — ultimately decided not to pursue charges against Clinton. He didn’t change his assessment even after uncovering additional emails that included classified information belonging to Clinton’s former top aide Huma Abedin on the laptop of her then-husband, disgraced former Rep. Anthony Weiner. (That revelation, announced in October weeks before the 2016 election, upended the race.)
What drove Comey’s decision to drop the case was the fact that Clinton didn’t clearly exhibit intent to commit a crime. She did not share the emails with any unauthorized parties, and she cooperated with the investigation. Essentially, the FBI found Clinton was maybe negligent but not malevolent.
The Clinton sock drawer case, briefly explained
During his post-arrest speech Tuesday, Trump invoked the case of former President Bill Clinton and his sock drawer as evidence that he was being subject to an egregious double standard: “I have every right to have these documents. The crucial legal precedent is laid out in the most important case ever of the subject known as the Clinton socks case.”
The actual sock drawer case doesn’t bear much resemblance to Trump’s own. Clinton kept tapes in his sock drawer of his interviews with historian Taylor Branch documenting an oral history of his time in the White House. Those tapes were the basis of Branch’s 2009 book The Clinton Tapes: Wrestling History with the President.
In 2010, the conservative group Judicial Watch sought a court order requiring the National Archives to designate the tapes as “presidential records” under the Presidential Records Act and to require Clinton to turn them over. The National Archives told Judicial Watch when it brought the case that the government had already concluded the tapes weren’t presidential records and that the Archives didn’t have the power to reconsider that decision: The power to designate presidential records lies with the sitting president.
It’s not a limitless authority. Presidents can’t just retain any document that pertains to official business because they say it’s personal, as Trump has tried to do in his case. But typically, documents created as part of the president’s fulfillment of their official duties constitute presidential records, while personal diaries, journals, and documentary material are considered personal effects.
A federal judge appointed by President Barack Obama agreed that the tapes were personal records rather than presidential records and that therefore Clinton did not need to submit them. Law enforcement did not get involved.
Why Mike Pence and Joe Biden’s retention of documents is different from Trump’s documents case
Over the past few months, it came to light that Pence and Biden had also retained documents from their tenures as vice president. But both of them also turned them over without friction.
A total of 10 classified documents were found in a locked closet at a University of Pennsylvania center where Biden kept an office between 2017 and 2020. An additional six classified documents were found at his residence in Wilmington. His aides said that they immediately turned over the documents upon finding them. The documents concerned “intelligence memos and briefing materials that covered topics including Ukraine, Iran and the United Kingdom,” CNN reported.
A special counsel was appointed by US Attorney General Merrick Garland to investigate the matter and whether any criminal charges should be pursued. That investigation is ongoing. Republican-led committees in the House are also investigating the matter. But even if prosecutors did think charges were warranted, Biden probably wouldn’t face any legal consequences. That’s because, as special counsel Robert Mueller noted after finding Trump may have obstructed justice during the Russia investigation, the department’s longtime stance is that a sitting president can’t be indicted.
Pence will not be charged for retaining documents. Pence searched his home voluntarily after Biden found documents at his residence and discovered about a dozen classified documents, which his attorneys turned over to the National Archives. Another classified document was discovered after federal agents searched his home with his consent and without a warrant being issued.