Reviewing Clinton’s emails in light of Trump’s boxes

In his first public remarks since being indicted, former President Donald Trump on Tuesday reminded the nation that he is not the first subject of an FBI investigation into confidential documents. At the Trump National Golf Club in Bedminster, N.J., Trump said former Secretary of State Hillary Clinton, his rival in 2016, violated records laws intentionally: “There’s never been obstruction as grave. Hillary Clinton broke the law, but she didn’t get indicted. The FBI and the Justice Department protected her.”

The FBI investigated Clinton in 2015 and 2016 over several unsecured email servers that she might have used to share classified information. Then-Director James Comey closed the investigation, opting not to recommend charges to the Justice Department just months before the presidential election. Earlier this year, the FBI raided Trump’s Florida estate and uncovered boxes of classified material. Here’s what you need to know about the charges and how each investigation turned out.

The law

On Tuesday afternoon in Miami, Trump pleaded not guilty to 37 counts of willfully retaining documents that no longer belonged to him and conspiring to hide them from federal authorities. The unsealed indictment alleges he and aide Walt Nauta intentionally hid boxes of materials that belonged to the National Archives. According to the Presidential Records Act, all of a president’s and vice president’s documents become the property of the National Archives and Records Administration as soon as they leave the Oval Office, whether they are classified or not. Every president since Ronald Reagan has had to deliver his papers to the Archives, which then sorts the information and decides what to display publicly after a set number of years. Anyone who accesses them outside of the Archives is considered to be unauthorized, even the former owners of the papers.

The charges against Trump stem from the Espionage Act, a broad law dating back to World War I efforts to crack down on spies. If Trump shared classified information with people who did not have the appropriate security clearances, that could pose a security risk to the nation’s defense.

Trump has argued that he declassified the materials “just by thinking it,” and that he had a right to keep them. But the Presidential Records Act says that classified or not, the documents were the property of the National Archives once Trump left office. If he kept those documents without authorization and shared them, that opens him up to prosecution under the Espionage Act.

When the FBI investigated Clinton’s email servers, it was also looking for potential Espionage Act violations. Because she was not president, the Presidential Records Act did not apply.

The emails

An internal watchdog blew the whistle on several unsecured email servers that Clinton used while she was the secretary of state from 2009 to 2013. Investigators also found that her staffers knew about the servers and their vulnerabilities but did not do anything. Clinton’s lawyers handed over the server information and turned in roughly 60,000 pages of emails. But before they did so, they deleted roughly 30,000 emails that they said were personal—things like scheduling or private conversations that did not pertain to Clinton’s role as secretary of state.

The FBI painstakingly recreated the server but could not recover the information the lawyers wiped. Of what they found, 113 emails contained classified information. Within the State Department and other branches, such information is supposed to be transmitted either in print with the classification marked or through a secured government network. The FBI did not reveal what the classified information was about or who it was shared with. The attorney general at the time did not appoint a special counsel.

Comey originally closed his investigation in July 2016. But after 650,000 more emails were found on a laptop belonging to former Rep. Anthony Weiner, D-N.Y., Comey reopened it in October. Weiner was married at the time to Clinton aide Huma Abedin. Roughly a week later, Comey closed the case again.

In a letter to Congress, sent just days before Election Day, Comey said his team analyzed all the newly found emails. Critics at the time pointed out that this would have been difficult to ensure in only 10 days. During the investigation, released statements showed foreign hackers tried to get into Clinton’s accounts. Comey said the FBI could not find evidence of a successful hack but also could not rule one out.

Comey said that Clinton’s actions were “extremely careless” but likely not criminal. The FBI closed its investigation in July 2016 without referring charges to the Justice Department. Comey said there was not enough evidence that Clinton knew she was mishandling information or that she knew her lawyers deleted some material. Comey also opted not to refer charges against Clinton’s attorneys.

Comey wrote in a book released in 2018 that he assumed Clinton would win her presidential bid and worried what a pending investigation on a current president would mean for the agency.

“Regardless of this decision, the undisputed finding of the FBI’s investigation is that Secretary Clinton put our nation’s secrets at risk and in doing so compromised our national security,” then–House Speaker Paul Ryan said in a statement. “She simply believes she’s above the law and always plays by her own rules.”

The boxes

Thirty-one of the 37 charges against Trump stem from classified documents allegedly found in boxes the FBI seized during a raid of Mar-a-Lago, Trump’s luxury Florida resort.

The indictment gives a lengthy timeline of what unfolded. The National Archives first asked for missing documents in 2021. In January 2022, Trump sent 15 boxes to his lawyers, who turned them over to the authorities. The archivists found 197 documents with classification markings and suspected there were more. On June 3, 2022, Trump’s attorney turned over 38 more classified documents per a grand jury subpoena. The indictment claims that Trump had more boxes but lied to his legal counsel that he had already given them everything. According to authorities, Nauta carried boxes from a storage room and a bathroom to Trump, who then reviewed the materials and held back 50 boxes from his attorneys. On Aug. 8, the FBI executed a search warrant and found the remaining boxes in Trump’s office and that storage room. Neither room was locked, and the Mar-a-Lago resort hosts thousands of guests per year.

“The classified documents Trump stored in his boxes included information regarding defense weapons capabilities for both the United States and foreign countries; nuclear programs; potential vulnerabilities of the [U.S.] and its allies to military attack; and plans for possible retaliation in response to a foreign attack,” the indictment reads.

In November 2022, Attorney General Merrick Garland appointed Jack Smith as special counsel for the documents investigation. Garland said a special counsel would be “in the public interest” “based on recent developments, including the former president’s announcement that he is a candidate for president in the next election, and the sitting president’s stated intention to be a candidate as well.”

Intent

Earlier this month, the Justice Department officially closed its investigation into classified documents found in former Vice President Mike Pence’s home. Pence said he was not aware files had ended up in his personal belongings and he took responsibility for the error. When Comey dismissed the reopened investigation into Clinton’s email server, he acknowledged that there was no evidence that Clinton intentionally tried to subvert the law. He also said her legal counsel promptly complied with the FBI’s requests.

Trump has claimed a double standard of justice compared to Pence and Clinton. The indictment claims an FBI warrant would not have been necessary and that charges would likely have been avoided if he had complied with the National Archives. The charges specifically accuse him of “willfully retain[ing] the documents and fail to deliver them to the officer and employee of the United States entitled to receive them.” Of the 13,000 documents he is alleged to have had, Trump is only being charged for the 31 documents he did not ultimately hand over even after being subpoenaed. The remaining six charges allege conspiracy to obstruct justice, withholding documents, corrupt concealment, and scheming to conceal during a federal grand jury investigation.

Trump said he is not guilty and that the charges reflect a politicized Justice Department rather than a serious investigation. He also accused President Joe Biden of jailing his top political opponent during campaign season. Biden has not issued a statement about the indictment.

A separate special counsel, Robert Hur, is looking into classified documents from as far back as Biden’s Senate terms, which ended in 2009. Some of the documents were uncovered in a Washington-based think tank office in November, and two more batches were found in his Wilmington, Del., house in December and January. Investigators are trying to determine whether Biden intentionally mishandled the materials, how they wound up at private locations, and who could have received classified information. They are also discerning which documents, like handwritten notes, belong to Biden versus the National Archives.

At a news conference on Thursday evening, Smith, the special counsel on Trump’s case, insisted that his team investigated impartially and thoroughly, adding, “It is important for me to note that the defendant in this case must be presumed innocent until proven guilty beyond a reasonable doubt in a court of law. To that end, my office will seek a speedy trial consistent in this matter with the rights of the accused.”