Former President Trump’s legal team has claimed the feds’ classified documents case is political, noting that other politicians — President Biden, former Vice President Mike Pence and former Secretary of State Hillary Clinton — have all done the same.
That’s unlikely to be a strong legal defense at Mr. Trump’s trial — and court experts say jurors may not get to hear about those incidents.
Joe Moreno, a former federal prosecutor and FBI consultant, said the prosecutors are guaranteed to object to any mention of other people housing classified documents as not relevant — an argument that can be made to a judge if something that is said or offered as evidence is not related to the case or charges at hand.
However, the former president’s team can try to mention it during opening and closing arguments.
“They would have to tread lightly,” Mr. Moreno said. “It’s really not part of the proper defense that Trump can put on.”
Any objection would have to be decided by U.S. District Court Judge Aileen Cannon, a Trump appointee who is overseeing the documents case and has set a trial date for August 14.
Mr. Trump is facing 37 criminal charges, including 31 alleging he withheld national defense information. He is also charged with concealing the possession of classified documents and making false statements and has pleaded not guilty to all charges.
The August date will likely be delayed as the two sides file various motions — and challenges to potential evidence — ahead of trial.
Mr. Trump has repeatedly fumed about the unequal treatment he has received from the Justice Department in this case, and his legal team likely wants to draw the comparison to other high-profile politicians who seem to get a pass for similar transgressions.
After the FBI raided Mr. Trump’s resort on Aug. 8 to seize classified materials, news reports surfaced that Mr. Biden and Mr. Pence also had government secrets at their homes, prompting the feds to retrieve those classified papers.
Mrs. Clinton, too, was scrutinized during the 2016 campaign for improperly handling classified information that she stored on her private, nongovernment email server while secretary of state for President Obama — a matter that the FBI ultimately decided not to prosecute her.
Still, the selective prosecution argument rarely prevails.
“Courts will reject 99.99 percent of these claims. You cannot show you are innocent by saying: but the government should also have prosecuted that other guy over there!” said University of California at Berkeley law professor John Yoo, who served as a deputy assistant attorney general at the Justice Department in the early 2000s.
Alina Habba, a spokesperson for Mr. Trump’s legal team, said precedent is on Mr. Trump’s side. She pointed to the “Clinton sock drawer case” in which activist group Judicial Watch sued in 2012 for access to audio recordings President Bill Clinton made while in office with a historian and later kept stored in his sock drawer after leaving office.
A federal judge in Washington dismissed the case, which had sought the recordings under the Freedom of Information Act.
“That is case law. That is legal precedent that will of course be used in front of the judge,” she said.
The ruling in the Clinton case, however, hinged on the distinction between government property and personal property.
Mr. Trump has also repeatedly invoked the Clinton case while defending himself on social media and in a speech just hours after his arraignment.
Bringing it up in court is another matter. Any mention of the other Clinton, or Mr. Biden or Mr. Pence, will be an uphill legal defense.
Legal claims about what another person did are not relevant during a criminal prosecution, warned Jared Carter, professor of constitutional law at Vermont Law and Graduate School.
“Even if they were comparable acts, and evidence suggests they are not, it’s not a legal defense. It’s what fourth graders say on the playground,” he said.
Mr. Trump’s efforts to invoke past classified documents cases are complicated by the release last week of an audio recording in which he discussed and showed classified national security information to people who did not have proper security clearances.
Pat Eddington, senior fellow in homeland security and civil liberties at the Cato Institute, said that Mr. Trump’s situation is different in that he went to an effort to conceal records rather than hand them over as Mr. Pence and Mr. Biden reportedly did.
“There are core differences between the two cases, including the magnitude of what Trump has done and his efforts to conceal what he was doing. Biden and Pence seemingly came clean out at the outset,” he said.
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