Former President Donald Trump has repeatedly and inaccurately compared his federal indictment to the Hillary Clinton email investigation that ended without charges, claiming unfair treatment.
Trump most recently invoked Clinton on Tuesday night during a lie-filled fundraiser at his golf club in Bedminster, New Jersey, hours after his arraignment in federal court. This misleading line of attack is a common refrain at his public events -- and also for some of his opponents in the 2024 Republican presidential primary.
Facts First: This is an inaccurate and self-serving comparison. To be sure, investigators found problems with how both Trump and Clinton handled classified material, and they both misled the public about their conduct. But there are several major differences that break in Clinton's favor. Trump mishandled far more classified material. And prosecutors have presented evidence that he knowingly broke the law and obstructed the investigation, while the FBI concluded that Clinton didn't act with criminal intent.
On Tuesday night, Trump baselessly claimed that "Hillary Clinton broke the law, and she didn't get indicted" because "the FBI and Justice Department protected her." But an exhaustive 2018 report from the Justice Department inspector general concluded that investigators made the right call by not charging Clinton, and that their decision-making wasn't motivated by political bias.
Trump also claimed Clinton had a "deliberate intention" of violating records retention laws when she used a private email server to conduct government business as secretary of state. He also said "there has never been obstruction as grave" as what Clinton did to impede the FBI probe into her emails. Both of Trump's assertions here are belied by the FBI's conclusions in the case.
Former FBI Deputy Director Andrew McCabe, who supervised the Clinton email probe in 2015-2016 and is now a CNN contributor, told CNN's Dana Bash on Monday that the Clinton probe was "very, very different" from the Trump case.
"Should it have happened? No," McCabe said of Clinton's private email server. "But what we didn't have was evidence that Hillary Clinton had intentionally exchanged or withheld classified information."
Here's a breakdown of some of the key differences between the Clinton and Trump situations.
The classified material itself
The FBI examined tens of thousands of emails from Clinton's private server. Investigators found 52 email chains that contained references to information "that was later deemed to be classified," McCabe said. Only eight of those chains contained "top secret" material, the highest level of classification.
Almost none the email chains had markings or "stampings" on them that would've indicated at the time that the material was classified, McCabe said.
Compare that with Trump, who took more than 325 classified records to Mar-a-Lago after leaving the White House, including at least 60 "top secret" files, according to prosecutors. The indictment says these documents contained foreign intelligence from the CIA, military plans from the Pentagon, intercepts from the National Security Agency, nuclear secrets from the Department of Energy, and more.
These were full documents with "headers and footers" and cover sheets explicitly "indicating they were some of the most classified materials we have," McCabe said. A picture that federal prosecutors included in a court filing shows some of the papers found at Mar-a-Lago with clear classification markings in large bold letters, saying "TOP SECRET" or "SECRET."
Then-FBI Director James Comey announced in July 2016 that Clinton wouldn't be charged. He said, "no reasonable prosecutor would bring such a case," because there wasn't enough evidence that Clinton "intended to violate laws," even though she had been "extremely careless" with classified information.
In the Trump probe, special counsel Jack Smith had enough evidence for a federal grand jury to indict Trump on 37 criminal charges, including 31 counts of willfully retaining national defense information. The former president has pleaded not guilty.
Obstruction of justice
There are also significant differences on obstruction that undercut Trump's narrative.
Prosecutors say Trump conspired to defy a grand jury subpoena demanding the return of all classified documents, and that he misled his attorneys who were trying to comply with the subpoena.
In the indictment, prosecutors also cited a recorded conversation from 2021 where Trump admitted that he possessed a document containing "secret information" about US military plans that he "could have declassified" as president -- but didn't.
For this and other conduct, six of his 37 overall charges are related to potential obstruction.
Despite Trump's repeated claims to the contrary, prosecutors never accused Clinton of obstructing the investigation into her emails. The FBI ultimately concluded that there was not "clear evidence" that Clinton "intended to violate laws," and that charges weren't warranted in this situation without any evidence of obstruction.
Furthermore, Clinton gave a voluntary interview to the FBI and she could have been prosecuted if she made any false statements. After closing the probe, Comey later told lawmakers that "we have no basis to conclude she lied to the FBI" or was "untruthful with us."
Two of the 37 charges against Trump use that same false-statements statute.
Misleading the public
From the moment Trump's documents scandal became public last year, he has responded with a constant stream of lies, recycled falsehoods, and anti-government conspiracy theories.
Clinton's public dishonesty about her emails was nowhere near as frequent and egregious as Trump's dishonesty about the classified documents probe. Nonetheless, some of Clinton's own public defenses, which she offered to voters amid the 2016 campaign season, ended up proving untrue.
For example, while she was under FBI investigation, Clinton publicly said she "never sent or received any classified material," and also said she "did not email any classified material to anyone." In another instance, she offered an unequivocal denial, saying "there is no classified materials" on her private server.
Fact-checkers deemed these claims to be false or misleading after Comey revealed after the probe that some classified material was found on Clinton's server -- albeit in less than 1% of the 30,000-plus emails reviewed by the FBI.
Some of Clinton's public denials included a caveat that she never transmitted anything with visible classification "markings." Comey later testified to Congress that only three emails reviewed by the FBI contained a classification marking.
Regarding Trump's claim that biased FBI and Justice Department officials "protected" Clinton in 2016 — in her view, they actually cost her the presidency. She has publicly blamed her election loss on Comey's bombshell announcement in late October 2016 that he was reopening the email probe, only to clear her again on the eve of Election Day.
