James Comey And The "No Reasonable Prosecutor" Standard

I'm astonished at how little analysis, smart or dumb, there's been in the wake of the Mar-a-Lago affadavit's limited unsealing -- but the situation is comparable to how poor the analysis has been of the Russo-Ukraine War. Journalists just aren't smart people, but when the news actually takes some work to report, they don't even show up.

Here's how I see it. Alan Dershowitz told Newsweek the same thing Andrew McCarthy said at National Review Online yesterday,

Donald Trump's former attorney Alan Dershowitz said that the unsealed affidavit supporting the FBI's search of Mar-a-Lago gives the Justice Department enough evidence to indict the former president.

In an interview with Newsweek, Dershowitz said, "It sounds like there would be enough for an indictment, but like probable cause, an indictment is easy to get," explaining that prosecutors could simply point to the materials found at Trump's residence that he had unlawful access to.

This is no diferent from what Andrew McCarthy said in yesterday's link:

The Justice Department cannot properly get a search warrant unless it has probable cause that crimes were committed. If it has such probable cause, that almost always means it has a basis to make arrests[.]

As McCarthy put it, the standard for a search warrant and the standard for an indictment are the same, and in fact, a search warrant normally takes place simultaneously with an indictment or an arrest. The fact that they didn't coincide in this case may or may not mean something, but I don't agree with either Dershowitz or McCarthy that it might mean the Department of Justice won't indict Trump.

The redacted version contains on page 8 what I think is the main public evidence against Trump:

The NARA Referral stated that according to NARA's White House Liaison Division Director, a preliminary review of the FIFTEEN BOXES indicated that they contained "newspapers, magazines, printed news articles, photos, miscellaneous print-outs, notes, presidential correspondence, personal and postpresidential records, and 'a lot of classified records.' Of most significant concern was that highly classified records were unfoldered, intermixed with other records, and otherwise unproperly [sic] identified."

This supports the view I've had all along that the materials in the boxes were random items that remained in the White House residence in the early morning of January 20, 2021 and were hurriedly picked up and placed in boxes by White House housekeeping staff. (Accounts suggest that the boxes weren't full, reflecting the haste of the procedure, so there is likely far less material in them than would be suggested by numbers like "15 boxes".) Again, Trump was authorized to take classified materials into the residence from the office areas, and as best I understand the legalities of the matter, he automatically declassified them in the act of doing this. As outlined in this analysis from John Solomon,

Trump's office issued a statement saying the records found in Mar-a-Lago were originally taken by the president from the Oval Office to his White House residence under a "standing" declassification order. . . . [All observers] agree every president has wide latitude to declassify what they want, when they want while they are in office. Some legal observers also noted a careful choice of language in the National Archives May 8, 2022 letter sent to Trump's legal team. Rather than call the documents found at Mar-a-Lago "classified" they described the recovered papers as "documents with classification markings," language that leaves open the possibility that declassification may be disputed in the future.

The problem that jumps out at me, which as far as I can tell nobody has yet mentioned in the context of the partly unsealed affadavit, is that former FBI Director James Comey recommended regarding Hillary Clinton's transmission of classified materials on an unsecured e-mail server, a very similar case, that

Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.

In other words, there have been cases like Robert Hanssen or Aldrich Ames, respectively FBI and CIA agents, who deliberately obtained classiified information and sold it to hostile countries. On the other hand, there have been government officials who did not observe the full set of protocols in handling classified materials -- indeed, they may even have been reckless or careless -- but did not do it with criminal intent. Comey went on to say,

All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.

To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.

And of course, Hillary Clinton's case is now a clear example of, as Comey puts it, "how similar situations have been handled in the past". Another "similar situation" is CIA Director John Deutch:

Deutch left the CIA on December 15, 1996, and soon after it was revealed that several of his laptop computers contained classified information wrongfully labeled as unclassified. In January 1997, the CIA began a formal security investigation of the matter. Senior management at CIA declined to pursue fully the security breach. Over two years after his departure, the matter was referred to the Department of Justice, where Attorney General Janet Reno declined prosecution. She did, however, recommend an investigation to determine whether Deutch should retain his security clearance. Deutch had agreed to plead guilty to a misdemeanor for mishandling government secrets on January 19, 2001, but President Clinton pardoned him in his last day in office, two days before the Justice Department could file the case against him.

Neither Clinton nor Deutch, however, was president, and neither had the president's authority to declassify. Both mishandled classified information, but Clinton received no penalty, while Deutch's penalty was quite mild. Neither Clinton nor Deutch was raided by the FBI. Note once again that the criterion for a raid is precisely the same as that for an arrest or indictment -- it's no good to suggest, like both Dershowitz and McCarthy do, that maybe Justice won't indict; they've already made Trump's case much more serious by opening the door, which they didn't do for Clinton or Deutch.

As far as we can tell from what's been unsealed and other accounts, the materials at Mar-a-Lago were gathered up from the White House residence at the end of Trump's term and placed willy-nilly into boxes which were sealed, loaded into moving trucks, and placed into locked storage rooms at Mar-a-Lago under video surveillance, with the premises under US Secret Service protection, where they either remained until Trump returned them voluntarily in January 2022, or they were seized in the FBI raid on August 8. They do not appear to have been accessed otherwise, as far as we currently know.

It's hard to avoid thinking that the conduct that James Comey excused under the "no reasonable prosecutor" standard as it applied either to Hillary Clinton in 2016 or John Deutch in 1997 was actually more serious than Trump's with the documents found a Mar-a-Lago. I think it will be very difficult for the current administration and the FBI as an institution to avoid the inference that the FBI is routinely used as a partisan political police force.