Analysis | Why comparisons of Trump’s actions with the Bidens’ or Clinton’s fall flat (2024)

The reality is that the charges Trump faces — or, at least, the charges he is believed to face — stem from actions that are unique to Trump. They are rooted in a surfeit of already public evidence, not to mention safe assumptions about the existence of other inculpatory documents and comments. To compare what Trump is experiencing to the absence of charges against Democrats may feel like a fair contrast for his supporters, but any consideration of such a comparison that goes even slightly beneath the surface shows important distinctions.

Let’s begin the comparisons with the most immediate and most obvious.

There are two central distinctions at play. The first is that Trump and his team spent months trying to block the National Archives and Records Administration (NARA) from understanding what documents he possessed and from obtaining the documents. The second is that Trump and his team were subpoenaed for a specific set of material — and failed to comply with the subpoena.

Both President Biden and Trump — and former vice president Mike Pence, for that matter — were in possession of material marked classified. Whether that material actually was classified is not always important, as we’ll see.

In Trump’s case, NARA realized that it was missing material from his presidency and asked for it. For months, Trump pushed back through his attorneys. In January 2022, a number of boxes of material, packed under Trump’s supervision, were shipped from Florida to Washington. NARA found that the material included documents marked classified, triggering a Justice Department investigation.

That investigation led to a grand jury subpoena for any material marked as classified. In June 2022, Trump’s attorneys turned over a packet of material in response to the subpoena and signed a statement saying that no other relevant documents — that is, documents with classification markings — had been found.

The FBI, however, came up with more in August when agents searched Mar-a-Lago and found more than 100, including a number of them in a special box in Trump’s office.

What happened with Biden was very different. After the investigation into Trump became public, Biden’s team proactively searched his records, finding a few documents with markings that were then turned over to the government. Pence’s lawyers did the same thing; last week, we learned that he wouldn’t face charges.

The question here isn’t really how secure the documents were (as Trump likes to suggest) or where they were held (ditto). Trump centers those questions specifically because it helps him draw a false equivalence with Biden. Instead, what is important is that Trump was asked for material and then did not turn over what he had. It may also be the case that he was sharing material he knew to be classified with people without clearance, as CNN’s most recent reporting suggests.

That, too, sets him apart from what’s known about Biden. But, that said, the Biden case, also in the hands of a special counsel appointed by the Justice Department, remains unresolved. It’s still possible that he might face sanction in some form. Which brings us to our next example.

When news of the indictment broke Thursday night, Florida Gov. Ron DeSantis (R) quickly released a statement that reflected a common view on the right.

“We have for years witnessed an uneven application of the law depending upon political affiliation,” he wrote in a tweet. “Why so zealous in pursuing Trump yet so passive about Hillary or Hunter?”

“Hillary,” of course, refers to Hillary Clinton, whom we’ll get to in a second. But let’s first address “Hunter” — President Biden’s son Hunter Biden.

The thing about complaints that Hunter Biden isn’t being pursued is that … Hunter Biden is being pursued.

A month ago, The Washington Post published one of its most recent of a number of reports looking at the Justice Department investigation into Biden’s son. It indicated that charges could soon be filed in that case, centered on possible violations of tax law or a violation related to his purchase of a gun. Since it’s a federal investigation, there is a lot of uncertainty about the scope of potential charges.

One difference, of course, is that there is a wide gap in the importance of a former president allegedly violating federal law in regard to classified documents and a relative of a president who allegedly evaded taxes. Developments in the Trump case understandably generate more conversation and attention than the Hunter Biden matter.

Should Hunter Biden be charged with a crime, we can predict one of two responses from Trump’s allies: Either the charges will be cast as insufficiently severe, or this talking point will fall out of favor in defenses of the former president.

Now, let’s talk about Hillary Clinton.

You will recall that during the 2016 election, her use of a private email server while she served as secretary of state prompted an enormous amount of media scrutiny. Trump, her general election opponent, did as much as possible to ensure that that scrutiny continued.

After a months-long investigation, then-FBI Director James B. Comey announced in July 2016 that the government wouldn’t seek charges against Clinton despite determining that classified material had been found on her server.

Comey explained why.

“Responsible decisions … consider the context of a person’s actions, and how similar situations have been handled in the past,” he said. He then continued:

Perhaps you, like Trump, think that Clinton should have been charged anyway. Fair enough.

But it’s hard to miss how Trump might have crossed the specific lines Comey set.

Clearly intentional and willful mishandling of documents? That he refused to return the material to NARA certainly suggests that to be the case, not to mention indications that he showed that material to other people.

Efforts to obstruct justice? Attesting to having returned all the material when not doing so, or, as some reporting has indicated, moving around boxes containing material, might fit the bill.

We haven’t seen the charges, and perhaps the informal standard indicated by Comey wasn’t met. As it stands, though, it’s not hard to see why the government might feel that Trump crossed a line that Clinton didn’t.

There’s one other claim that popped up that is worth addressing. Here, for example, is Friday’s cover of the New York Post.

Other Trump allies, particularly ones involved in escalating the allegation about Biden mentioned above, were quick to suggest that there was something nefarious about the timing of the Trump indictment.

The claim about Biden centers on a document that Republicans in Congress have been trying to make public for a month. I’ve written about this at length, but here’s the short version.

Over the course of Trump’s presidency, his attorney Rudy Giuliani was actively engaged in trying to dig up dirt on Joe Biden, including by elevating allegations about Biden centering on Hunter Biden’s work for the Ukrainian energy company Burisma. The Justice Department was wary, understanding that this made Giuliani a useful vector for putting misinformation in front of Trump, but when Giuliani handed over material to the department in late 2019 or 2020, the FBI chased it down.

That included interviewing an informant who apparently said he’d been told about an allegation of Biden’s receiving a bribe. The informant, whom the FBI had used for some time, was conveying this secondhand; he or she wasn’t admitting to having paid a bribe. It’s possible, in fact, that the informant simply spoke to someone who’d also made the same claim to Giuliani. The FBI interviewed the informant and explored a possible investigation of the claim. In the summer of 2020, FBI officials decided against it.

In other words, the allegation against Biden that was contrasted with Trump on the cover of the New York Post is — by all appearances at this point — an allegation made by one individual in Ukraine. Perhaps it will pan out, although the FBI appears not to have thought so back when Trump appointee William P. Barr was running the Justice Department. But trying to equate this allegation with what’s understood about Trump is ridiculous.

If the Trump indictment were rooted in, say, a claim from one unnamed guy in China that Trump had shown him a document during a Mar-a-Lago visit, then the two might be considered comparable. It is not.

Again, the point here isn’t really to point out an injustice in the legal system. It is, instead, to imply such an injustice in an effort to soften the allegations against Trump. Some people take Trump and his allies at their word when they suggest that the things done by Democrats are equivalent to what Trump did, something made easier by the right-wing media’s lack of interest in explaining the Trump allegations. Others, like Trump, are simply opportunists.

There is a reason that Trump is facing these charges now. He may not be convicted. But his situation is not comparable to that of any of his perceived opponents.

In fact, it is not comparable to anything else in U.S. history.