The public perception is growing – that a “double standard” exists in applying laws, including the Fourth Amendment. One standard exists for Democrats, another for Republicans, including former President Trump. The impact is of that perception on public trust is devastating.
In cases like former Secretary of State Hillary Clinton’s proven mishandling of classified documents, use of a secret server, intermingling of open and classified documents where susceptible to foreign espionage, foreign fundraising for her foundation while Secretary of State, destruction of tens of thousands of emails, “bleaching” of her hard drive, creating a false story to trigger an FBI investigation into her 2016 opponent – no legal consequences.
In the case of former President Donald Trump allegedly mishandling of documents – while making them available to Justice, keeping them under lock and key, and negotiating – the result has been unprecedented legal consequences, a massive FBI raid on his home.
What is publicly known suggests Trump held documents of importance to him at his home, some relating to decisions made, some tied to conversations with foreign leaders, some memorializing privileged attorney-client conversations, some subject to executive privilege, possibly all declassified.
What is also known – or should be – is that presidents ritually have conversations with National Archives on leaving office, are allowed to retain some documents. From George Washington through Jimmy Carter, presidential documents were the exclusive property of the president.
After 1978, following the Presidential Records Act of 1978, documents deemed official “presidential records” were considered “public,” with exceptions for personal retention. Conveniently, Carter signed that act in 1978 but it became effective January 20, 1981 – the day Carter left office and Reagan assumed office.
Notable, the act leaves questions unresolved. For example, under Section 2208, the Archivist can make documents public without a former president’s approval, if his successor permits it, which raises the question – what if the Archivist feels political pressure to disgorge private or untimely data? What if an outgoing president has concerns about potential unfairness or selective release?
Under Section 2201, which sets “official record” definitions, gaps are worked out between a former president and Archivist, such as what is the “segregable portion” of a document for retention purposes, and “direct effect upon” presidential duties.
A former president is allowed to retain “personal records,” including “documentary materials,” “diaries, journals, or other personal notes,…,” “materials relating to private political associations…,” “materials relating exclusively to the President’s own election…,” and “materials directly relating to the election of … “ lower officials.
Deciding what is difficult. Room for accommodation exists, built into the statute. Also note that a president can declassify documents. No Supreme Court precedent exists indicating a president cannot declassify absent typical procedures.
By contrast, a secretary of state is not a president. A secretary cannot declassify documents the State did not classify. A President can declassify anything.
Compounding public cynicism, some in the media want to compare Clinton’s obfuscation and alleged crimes with Trump’s actions. These arguments are laughable, the media reaction tragic.
The Washington Post says, for example, Trump’s possible mishandling under 18 USC 793, 2071, and 1519 is different because penalties are higher than for crimes Clinton might have faced under 18 USC 1924 for “unauthorized removal and retention of classified documents.”
They make much of ten-year versus five-year potential prison terms, a complete red herring. That has nothing to do with the Fourth Amendment. Liberal outlets try to distinguish the cases saying Trump is “under investigation” for not stopping rioters on January 6, another red herring.
They say Clinton’s egregious mishandling of classified material was cleared by the FBI’s James Comey – who had no legal authority to do so and was rushing his own anti-Trump agenda. Being cleared by Comey is more vilification than vindication, but liberals forget that.
Despite constant line-blurring, apparent deception, and intentional misinterpretation, like pretending she might have “wiped” her server with a “cloth,” Clinton is deemed “cooperative.”
Meanwhile, Trump’s lawyers allowed full access last May – more than a year after he left office, but he is accused of being uncooperative, as questions remain over a second subpoena. That was enough to bring the wrath of Biden, Justice, and the FBI down around him.
The disparate, unequal treatment of these two national leaders is breathtaking, Clinton and cronies getting a free pass, even after creating a false probe of Trump tied to “Russia collusion” that proved distracting, fictional, and remains under criminal investigation.
Bottom line? The public is losing confidence in Democrat leaders at Justice, the FBI, and White House. Polls show plummeting public trust, a sense that institutions are not acting fairly, are politically corrupt, and work under a politically motivated “double standard.”
The impact of this turn is serious. The recent raid on former President Trump’s home – an unprecedented, arguably unconstitutional turn – highlights and compounds the problem. Americans see it all and it gives them pause.
By way of a comparison, imagine fair turnabout. Imagine dozens of armed agents upending Speaker Pelosi’s home, Senator Feinstein’s home, or the 65 others suspected, for evidence of “insider trading,” as all 67 are suspected of abusing the public trust.
Imagine the White House itself or homes of President and Hunter Biden raided, turned upside down, boxes taken out – or the homes of both Clintons and their daughter, all ransacked.
Who knows what else might happen, homes of former Presidents, Attorneys General, FBI directors, IRS leaders, governors and mayors could be stormed, sacked, boxes taken.
Main point? We do not do that in America. We have a Fourth Amendment. Politics should not interfere with equal administration of the laws. A “double standard” for Democrats and Republicans is not just dishonest. It is illegal, unconstitutional, and killing public trust.