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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?
I happen to think that indicting potential candidates creates a slippery slope unless the charges are very serious, and that these particular charges do not seem to clear that bar (though I suppose it might depend on the contents of the specific documents in question).
That being said, the selective enforcement argument does not seem to be very persuasive, because there are are at least two elements to a violation of 18 USC sec 793(e): 1) unauthorized possession of national security documents; and 2) willful retention or the documents and failure deliver it to the officer or employee of the United States entitled to receive it. There is evidence that Trump, unlike the others you mention, willfully retained the documents and failed to deliver them when the government requested them. Hence, while there is evidence that Trump violated 18 USC sec 793(e), there is no evidence that the others violated the law.
Moreover, when James Comey declined to recommend the prosecution of Hillary Clinton, he said:
Again, there is evidence of several of those criteria re Trump (indeed, he is charged with obstruction of justice), but not re the others.
Hence, if the decisions were completely objective, the pattern of decisions would look the same. Hence, the pattern you identify is not evidence of subjective prosecution.
I should've made it more obvious that I don't find the selective prosecution arguments at all persuasive (Trump's case can be entirely distinguished with his inexplicable refusal to return the documents and the comically inept manner he tried to hide stuff from his own lawyers). I was trying to steelman the argument and assumed it was true in order to discuss the other question.
Correct. Clinton clearly set up her server to evade FOIA and got kid gloves treatment from the FBI. But she at least played along with the investigation a little bit and could feign some ignorance. Trump was brazenly defiant and they literally have a recording of him breaking the law. All he had to be was 10% less stupid but he couldn't pull that off.
She had her staffers destroy an unknown but likely very large amount of evidence. That is not "playing along with the investigation", and the reason we don't know it for a certainty on the record is because the FBI helped her cover it up.
I understand that what Trump did was very, very stupid. I maintain that the stupidity or intelligence of the politicians in question is not the dispositive factor here.
You're not going to see me defend Clinton's server, clearly it was wiped to preclude any further evidence gathering. The FBI should have simply seized the server, not asked her politely to hand over hand-picked "relevant" emails and then allow her to erase it. But she complied with that very lax standard. Also her apparent motive (FOIA noncompliance, mixing government work with business) is worse than Trump's, which is purely his ego.
If Trump had complied by handing over the physical documents when asked, I doubt he would have been prosecuted. His defiance and his stupidity are major factors here, he admits to committing a crime on tape, which makes it so easy to prove in court.
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