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I've been ruminating on a question about Trump's prosecution. One of the common arguments I've come across is that prosecuting Trump is improper because it's just political retaliation falsely disguised as a neutral and dispassionate application of the law. In support of this argument, you could cite the fact that the apparent mishandling of government records occurs fairly regularly by similarly-positioned politicians (Clinton, Biden, Pence, etc.) and yet its enforcement appears to be selectively doled out. This is potentially also supported by the fact that, speeding tickets notwithstanding, no other US president (former or sitting) has ever been charged for anything before. The fact that US institutions chose to break such a long-standing norm at this particular moment seems a bit too much of a coincidence to believe it was done with honest motivations.
Assuming all of the above is true, are there any limiting principles? Until something happens for the first time, it remains by definition "unprecedented", so if your rule is based solely on precedence then nothing would ever be allowed to happen unless it has already happened before which doesn't seem workable. Another consideration also is just because something hasn't happened for a very a long time, it doesn't mean it accidentally created an inviolable precedent that can never be broken now. For example, the crime of piracy is one of the few specifically mentioned in the Constitution and it used to be regularly prosecuted way back in the day but there was a very long lull before the feds dusted it off to go after some Somalis.
I don't think anyone would agree that a permanent bar was created, because that would bestow elected officials and political candidates the extra benefit of potentially perpetual & absolute immunity from all criminal liability, including for conduct that happens after they leave office. In its most absurd implementation, this hypothetical system would allow any criminal a "get out of jail" card just by declaring election candidacy.
So if the longstanding norm against prosecution can indeed be broken, then under which circumstances? For Trump's supporters, I suppose one possible answer is that he has been the target of such a relentless and unprecedented avalanche of (presumably bad faith) lawfare — Russiagate, impeachments, etc. — that trust in the system has been depleted to the point that all action against him should be assumed to be ill-disguised political retaliation as a rule. Assuming that's true, then what? Should the rule be that other politicians can be prosecuted but that Trump should have a carve-out in consideration of the unusually aggressive persecution he had to endure? If so, how serious of a crime would this cover? How long should this immunity last for? Should everyone who faces relentless persecution be afforded similar benefits?
It goes a good bit further than enforcement appearing to be selective, it is demonstrably selective. Simple fact of the matter now that we have the Indictment, we can compare it to the Comey report from 2016 and what becomes readily apparent is that Clinton was allowed off the hook for what were substantially more egregious violations than anything Trump has been accused of. It's a pity pushshift is currently down as I'd like to link the thread where I did a detailed breakdown of the report when it was first released and compared Clinton's case to Petraeus' but six years is a lot of posts to scroll through.
In any case, I see this as the equivalent of Faucci declaring Racism "a public health crisis" so that he could endorse BLM protests while continuing to condemn anti-lockdown protests as super-spreader events.
It lays bare the lie that they are not acting politically.
Sure, the basic version goes something like this...
Per the FBI's report 8 of the recovered email chains contained material that had originated outside the State Department and had been marked Top Secret at the time of sending. The origins are important because originating outside the state department means that Clinton was not the classifying authority and thus could not legally copy or distribute said material without consulting the classifying authority. IE her counterparts in the Department of Defence, Department of Energy, etc..
Of those 8, 7 contained material that had been marked Special Access, and 3 for compartmentalization. For those of us who have actually held a security clearance this here is the real galling bit. Plenty of material gets classified Secret or Top Secret while remaining effectively public to anyone with the appropriate clearance. Something that gets marked "Special Access" aka as being "Codeworded" means that this is not something that goes into the secure documents room where any schmuck with a security clearance can look at it. This is something that we seriously want to limit access to and should be considered strictly need-to-know. For the record, this is the level of access that the infamous "nuclear codes" reside at. Compartmentalization goes a step above that. Stuff that gets explicitly marked for compartmentalization is not supposed to leave it's designated compartment. It's the "Gentlemen, nothing we are about to discuss here can leave this room." type shit that shows up in political thrillers. It is the true name of our agent in the kremlin, the mathematical algorithms used to generate and authenticate the nuclear codes, and the detailed schematics of the crashed UFO in Area 51, that sort of thing. If you have Compartmentalized information that someone else needs to know you do not put it in a fucking email. You either call that person and speak to them directly on a secured line, or you put it on a piece of paper. put that paper in an appropriately marked envelope, and have an armed courier hand deliver it to the individual in question. The old "handcuffed briefcase" trope may or may not make an appearance. I've worked with Special Access and Compartmentalized information a few times over the course of my career and it's always a PITA. It's the kind of thing where you have to hand your cellphone, watch, and any other electronics you might have on your person to a security guard by the door before entering a room that is also a faraday cage before you can discuss the topic of the meeting.
Furthermore, these emails were found unencrypted on the laptop of a third party who did not have a security clearance, thus demonstrating beyond any doubt that an unauthorized disclosure did occur.
Finally, there's the apparent destruction of evidence. Clinton, or someone on her staff attempted to conceal the unauthorized disclosure by wiping the files, and any record of them being sent from the host side. We only know about these files because they were recovered from the receiving computer. This also implies that there may be other unauthorized disclosures by Clinton and her staff that were not discovered because the receiver was never found.
In contrast Trump is accused of illegally retaining classified material for which he was the classifying authority and possibly disclosing it to a 3rd party but as it stands hard evidence of that disclosure has yet to be presented, all we got is Trump saying that he would.
TLDR
There is no way for TSC/Compartmentalized material to show up on someone personal computer or email server without someone violating the espionage act.
Likewise, there is no way for it to be sent to a third party over the internet without someone violating the espionage act.
Someone trying to conceal the above implies that they had knowledge that they were acting illegally.
Could you specify where in the FBI reports they discuss this. Your link goes to a list of forty multi-page PDF's.
I think this is the part of Comey's statement where he discusses the issue
He says 'concern matters' rather than 'contain materials' which seems to imply a discussion of something classified Special Access rather than the transmission of the special access materials themselves.
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