Jonathan Emord: How Do You Prosecute Trump and Not Biden (and Clinton)?

Trump, Biden and Hillary Clinton have something in common.  Each had classified information at their homes. Donald Trump, the only one among the three has faced the wrath of Attorney General Garland or senior Biden Administration officials.  However, can Garland be allowed to prosecute Trump while not prosecuting Clinton or Biden? The answer lies in whether President Trump’s defense team possesses or can acquire proof of political discrimination by Garland in targeting the former President and in specifically declining to pursue his political opponents. 

 Clinton is the most guilty from the perspective of provable intention, although the Espionage Act prohibits any unintentional misappropriation or misuse of classified information.  Hillary willfully, and knowingly, had all of her email correspondence sent to her from the Department of State to her unapproved, unprotected servers located in Chappaqua.  After State Department briefings, Hillary did this because she was legally bound to rely only on secure Department of State servers for any correspondence to her office. This would include classified documents. At least 113 classified documents were among the emails Clinton sent to her unsecure home computer.  Although Clinton was aware that the routing violated Espionage Act, former FBI Director James Comey did not charge her.  Comey said that Clinton would not be sued by any reasonable prosecutor for her violations. However, many prosecutors have been sued and imprisoned for misappropriating far less classified documents.  Comey was biased against Trump. He knew with Obama and Biden the Steele dossier had been a fraud. Comey allowed it to be presented before the FISA courts, and engaged a special prosecutor to conduct a lengthy, expensive, and malicious investigation into Russian collusion allegations that he, and all those involved, knew were unsupported and unjustified.  

 Biden’s placement of classified documents in his Wilmington, Delaware private office, in storage space in his garage, and possibly among Biden’s senate records at the University of Delaware strongly suggest gross negligence which also violates the Espionage Act.  The majority, if not all of the documents in question, date back to his time as Vice President.  He was not authorized to remove or declassify the documents as Vice President.

Trump was known to have access to classified documents, which he and Cash Patel claimed were declassified before he left office.  Although there is no evidence to prove Trump knew which classified documents were taken from the White House and moved to his home, there is plenty of evidence that he and his attorneys cooperated in obtaining the documents returned to National Archives.  Trump was the only one who was subject to an FBI residence search, which had to be approved and authorized by the Attorney General.  

Merrick Garland, Attorney General, will soon decide whether to bring criminal charges against Trump.  If Garland files those charges, he’ll be under intense congressional scrutiny and public scrutiny. They will want to know why DOJ pursued Trump, but not Clinton, Biden, or Hunter Biden.  Trump’s defense will be solid if there is a selective prosecution.

It is very difficult to prove a selective prosecution defense.  It prevailed in cases pre-dating the Supreme Court’s 1996 landmark decision on the question, States v. ArmstrongIt has not been successful since the Supreme Court set a high standard. Armstrong The defense must be proved.  For selective prosecution to be proven, the defendant must demonstrate that (1) others in similar circumstances were not prosecuted; that (2) prosecutors purposely discriminated against defendants; and (3) that a particular discriminatory classification is obvious (e.g. one based upon race, religion, political affiliation).  In his superb New York Law Journal Article Evan T. Barr, former Assistant U.S. Atty for the Southern District of New York, discusses how many Trump connections and Trump proteges, such as Roger Stone, Paul Manafort or Lev Parnas unsuccessfully asserted the defense of selective prosecution to counter the charges against them.

There will be many defenses available in any Trump prosecution for violating the Espionage Act or misappropriation classified documents. However, the defense of selective prosecution will depend on specific evidence from whistleblowers, others, and other evidence proving that Trump was targeted by the Administration because of his political views and affiliations, while failing to act against similarly situated Democrats.  It is difficult to obtain the specific information necessary to prove discriminatory intent. This is because the courts often deny or severely limit discovery of the government and because the guilty of discriminatory intention often conceal their motives, making it difficult for them not to be recorded.  

Garland has a long history in which he pursues a biased political agenda by proceeding without the necessary facts.  

Trump must collect evidence early in his case to support a selective prosecutor defense, if Garland is against Trump over the classified documents issue.  That evidence will have to be specific proof of discriminatory intent, directly germane to the DOJ decision to prosecute him and to the DOJ’s failure to prosecute his political opponents.  But, can Trump’s defense team locate it?