‘But Her Emails’—Trump’s Dishonest Whataboutism

In defense of the proposition that Donald Trump has been the victim of “unequal application of rules and practices,” Alan Dershowitz, the Harvard law professor, asked in a weekend op-ed, “Why was the [Trump] matter handled so differently from the prior investigations of Sandy Berger and Hillary Clinton, who were also suspected of mishandling classified material?”

Dershowitz’s question answers itself. To the extent that the Trump investigation revolves around “mishandling” classified material, the two investigations should indeed be handled with a similar seriousness.

That, however, spells trouble for Trump, not exoneration.

As Professor Dershowitz points out, “Berger and Mrs. Clinton were suspected of mishandling confidential materials—he by removing them from the National Archives in 2005, she by transmitting them over her private email server while serving as secretary of state.”

Berger admitted that he removed classified documents from the National Archives. He pleaded guilty to a misdemeanor and was sentenced to a $50,000 fine and community service and lost his security clearance.

Clinton was subjected to a massive, far-reaching criminal investigation by the FBI and the Department of Justice. Much of the Clinton investigation took place on the public stage, and even though the FBI declined to recommend that criminal charges be brought against her, she was excoriated in a public FBI report that likely cost her the presidency in 2016.

Trump’s situation is closer to Berger’s than Clinton’s. Trump, like Berger, is accused of stealing and carting away government property, including confidential information. Trump’s situation, of course, is far worse, since Berger was never accused of refusing to return the documents once he was caught. (More on that in a moment.)

So, yes, there might be some semblance of equal treatment with Berger if Trump were to now plead guilty to a crime. (As an ex-president, he has no security clearance to lose.)

And “equal treatment” to Clinton might mean that Trump should now be subjected to a comprehensive criminal investigation into his mishandling of classified material, leading either to a felony indictment or a public excoriation, like Clinton.

But that’s where the equivalency with Clinton ends.

Trump, unlike Clinton, is not merely accused of “mishandling” classified information—although he certainly did that—he is suspected of stealing it and, when caught, refusing to return it to the government. More specifically, Trump is suspected of removing storage boxes filled with government property (including classified, top secret / sensitive compartmented information) from the White House, storing it in his unsecured Mar-a-Lago residence, lying to the government about having returned all documents marked as classified, and refusing for months to return the stolen material despite both informal requests and formal subpoenas.

Whatever you may think about Hillary Clinton’s use of a private email server to conduct government business, there was never a hint that she withheld or refused to turn over her servers when they were requested by the government. To the contrary, the issue with Clinton was whether classified information had been “improperly stored or transmitted” on Clinton’s personal system, not whether she had withheld anything from the investigators. Then-FBI director James Comey, in his infamous public excoriation of Clinton, made it clear that Clinton provided 30,000 emails to the State Department in December 2014, that the FBI also searched more than 60,000 other emails remaining on her email system, and had “searched through all” of the servers in an attempt to recover any emails that may have been deleted.

Trump’s harboring the stolen documents and refusing to return them to the government despite months of attempts to recover them, through both voluntary requests and subpoenas—and especially Trump’s reported lying about them—makes Professor Dershowitz’s blather about “what appears to be unequal application of rules and principles” and “treating like cases alike” laughable. The Trump case is not even remotely “alike” to the cases of Berger and Clinton.

There was no indication that the government had any significant, prolonged difficulty obtaining the Berger documents or the Clinton servers once they asked for them. There was no need for a search warrant in either case. Full stop.

Not so with Trump.

While we won’t know everything about the basis for the Mar-a-Lago search warrant until we see the affidavit that led to its issuance—and we may not know everything even then—we don’t know nothing about it. We know that Trump turned over some 15 boxes of documents last January, reportedly including some marked classified and “top secret.” We know, according to press reports, that a Trump lawyer signed a written statement assuring the government that “all material marked as classified and held in boxes in a storage area” at Mar-a-Lago had been returned to the government. We know that, in fact, Trump had not returned all documents marked as classified to the government—to the contrary, the Mar-a-Lago search last week uncovered that a trove of documents marked confidential, top secret / SCI that were still being kept at unsecured locations on the premises.

All of this makes Professor Dershowitz’s bland concession that “the facts, especially the degrees of culpability, may be different” inadequate to the point of absurdity.

Flogging the notion that “if the facts are similar and the treatment is different,” when we already know that the facts are materially dissimilar, makes Professor Dershowitz sound more like Celebrity Defense Attorney Dershowitz, a special pleader auditioning for a high-profile place on Trump’s defense team, not the principled defender of equal treatment that he’s posing as.

Equal treatment with past offenders would mean only that Trump should be the target of a comprehensive criminal investigation, at the conclusion of which law enforcement should either indict him or fully disclose to the public the rationale for not indicting him.

But equal treatment has nothing to do with the search of Mar-a-Lago last week. Neither Sandy Berger nor Hillary Clinton was suspected of harboring, lying about, and refusing to return stolen documents.

Suggesting an equivalence between Trump and those cases is the worst kind of “whataboutism.” Professor Dershowitz notwithstanding, it is simply dishonest.