Special counsel Jack Smith has argued the case he is prosecuting against former President Donald Trump for allegedly mishandling classified information is “starkly different” from the case the Department of Justice declined to bring against President Joe Biden over retention of classified documents.
Prosecutors, in responding to a motion President Trump filed to dismiss the case based on selective and vindictive prosecution, said on Thursday this is not the case of “two men ‘commit[ting] the same basic crime in substantially the same manner.”
They argue the similarities are only “superficial,” and that there are two main differences: that President Trump allegedly “engaged in extensive and repeated efforts to obstruct justice and thwart the return of documents” and the “evidence concerning the two men’s intent.”
Special counsel Robert Hur’s report found that there was evidence that President Biden “willfully” retained classified Afghanistan documents, but that evidence “fell short” of concluding guilt of willful retention beyond reasonable doubt.
Prosecutors argue the “strength of the evidence” is a crucial element showing these cases are not “similarly situated.”
“Trump may dispute the Hur Report’s conclusions but he should not be allowed to misrepresent them,” prosecutors wrote, arguing that the defense’s argument to dismiss the case fell short of legal standards.
They point to volume as another distinction: President Biden had 88 classified documents and President Trump had 337. Prosecutors also argued that while President Biden’s Delaware garage “was plainly an unsecured location ... whatever risks are posed by storing documents in a private garage” were “dwarfed” by President Trump storing documents at an “active social club” with 150 staff members and hundreds of visitors.
Defense attorneys had also cited a New York Times report where President Biden was reported to have held the view that President Trump should be prosecuted, expressing concern about his retention of documents at Mar-a-lago.
Prosecutors argued that this case was not “foisted” upon the special counsel, who had not been appointed at the time of these comments.
“Trump appears to contend that it was President Biden who actually made the decision to seek the charges in this case; that Biden did so solely for unconstitutional reasons,” the filing reads. “He presents no evidence whatsoever to show that Biden’s comments about him had any bearing on the Special Counsel’s decision to seek charges, much less that the Special Counsel is a ’stalking horse.'”
8 Other Cases
President Trump has argued he is being subjected to selective and vindictive prosecution, warranting dismissal of the case, but prosecutors argue that the defense has not “identified anyone who has engaged in a remotely similar battery of criminal conduct and not been prosecuted as a result.”
In addition to President Biden, defense attorneys offered eight other examples.
Former Vice President Mike Pence had, after 2023 reports about President Biden retaining classified documents surfaced, retained legal counsel to search his home for classified documents. Some documents were found, and he sent them to the National Archives and Records Administration (NARA).
Prosecutors say this was different from President Trump’s situation, as Vice President Pence returned the documents out of his own initiative and had fewer than 15 classified documents.
Former President Bill Clinton had retained a historian to put together “The Clinton Tapes” project, and it was later reported that NARA did not have those tapes years after his presidency. A court had ruled it could not compel NARA to try to recover the records, and NARA had defined the tapes as personal records.
Prosecutors argue those were tape diaries and the situation was “far different” from President Trump’s.
Former Secretary of State Hillary Clinton had “used private email servers ... to conduct official State Department business,” the DOJ found, and the FBI opened a criminal investigation.
Prosecutors argued this was a different situation where the secretary’s emails showed no “classified” markings and the deletion of more than 31,000 emails was done by an employee and not the secretary.
Former FBI Director James Comey had retained four memos “believing that they contained no classified information.” These memos were part of seven he authored addressing interactions he had with President Trump.
Prosecutors argued there was no obstructive behavior here.
Former CIA Director David Petraeus kept bound notebooks that contained classified and unclassified notes, which he allowed a biographer to review. The FBI later seized the notebooks and Mr. Petraeus took a guilty plea.
Prosecutors argued there was prosecution in Mr. Petraeus’s case, and so President Trump’s case is not selective.
Former national security adviser Sandy Berger removed five copies of a classified document and kept them at his personal office, later shredding three of the copies. When confronted by NARA, he returned the remaining two copies and took a guilty plea.
Former CIA director John Deutch kept a journal with classified information on an unclassified computer, and also took a guilty plea.
Prosecutors argued both Mr. Berger and Mr. Deutch’s behavior was “vastly less egregious than Trump’s” and they had been prosecuted.
Former White House coronavirus response coordinator Deborah Birx had possession of classified materials according to documents retrieved by NARA.
Prosecutors argued that there was no indication she knew she had classified information or “attempted to obstruct justice.”
