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What makes Trump's case different from other classified documents cases?


In the federal prosecution of former President Trump, there is not much disagreement about the facts. Photos attached to the indictment show cartons of documents stacked in Trump's Florida residence. The indictment says many papers contained national defense and even nuclear secrets. The debate, then, is all about how to interpret those facts.

Trump supporters have claimed he had some right to take the papers and refuse to return them, although prosecutors found the law says otherwise. Supporters also ask, what about other cases? What about Hillary Clinton's email server in 2016? What about documents found in the homes of Joe Biden and Mike Pence? Why aren't they in court? Well, we've called former federal prosecutor Robert Mintz to talk about this. Good morning, sir.

ROBERT MINTZ: Good morning.

INSKEEP: Bottom line - are those cases all the same?

MINTZ: Well, they're not really. This is a case about the willful retention of classified documents. And the key distinction between these charges and the facts that we know about President Biden, former Secretary of State Clinton and even former Vice President Mike Pence is that while there may have been documents improperly removed in those cases, there is no evidence of intent, no evidence to willfully retain classified documents. So in a very real sense, this indictment that former President Trump is facing is not about what documents he took with him when he left the White House. It's all about what he's alleged to have done after the government requested the return of those documents.

INSKEEP: Oh, when he kept saying or having his lawyers say that they had done a good faith search and they'd returned everything and that there was nothing there - this is what the crime is, you're saying?

MINTZ: Yeah. And that's why we've seen in this indictment, which is extremely detailed, all of these very specific allegations. These are, by the way, not facts that you have to include in the indictment, but they were facts that the special prosecutor decided were important to include, I think so the American public could see the basis for these charges. So that's why, for example, we see these specific allegations about moving boxes out of a storage room, telling an attorney to search that room for classified material without saying that dozens of boxes were being kept elsewhere, suggesting an attorney hide or destroy documents that had been subpoenaed and causing allegedly other people to make false statements about whether all the classified documents had been produced. This is a very detailed indictment, and these are the allegations that the prosecutors are going to hope to prove the willful intent, in other words, the guilty knowledge of the defendant here.

INSKEEP: Are you saying that that evidence that you just described shows the defendant's state of mind, shows his intent at the time of this alleged crime?

MINTZ: Well, that's exactly what prosecutors are going to have to show here, because these cases are all about what was going on within the mind of the defendant. The prosecutors are going to try to show consciousness of guilt. In other words, they're going to try to argue that somebody who was totally innocent would not have acted the way that the defendant - in this case, former President Trump - is alleged to have acted in these circumstances.

INSKEEP: Nonetheless, you can imagine a defense lawyer for the former president making an argument that this is selective prosecution. What is that as a legal concept? And how, if at all, could it apply here?

MINTZ: Well, the concept of selective prosecution is something that is very rarely successful. It's sort of the idea that you're being singled out for prosecution when others who are committing the very same acts are not being prosecuted. And it's something that really doesn't work unless you can demonstrate that you're being singled out for some kind of bad reason - because of your ethnicity, perhaps your religion, something like that. In this case, though, I do think we're going to expect to see the defense raise that very issue. And they're going to point to former Secretary of State Clinton and the issues that came up with the use of her personal email server to conduct government business while serving as secretary of state. That was a situation that led to classified information being shared on non-classified, non-government computer servers.

But I don't think we're going to see the judge let them get very far down that road because judges like to keep the case focused on the defendant, the charges, the evidence against them and not turn this into a sideshow where the case becomes really about another case. We'll see the defense try to insert that into the case. We'll see how far the judge allows them to go with that.

INSKEEP: Do you think there's any possibility of a speedy trial, which is what the special prosecutor has asked for?

MINTZ: Well, the speedy trial is something prosecutors will be shooting for. But the defense really is the key here because they're the ones that can take extra time. That will depend on how much evidence prosecutors present during discovery. And the defense here will decide how quickly this case will go to trial. Because at the end of the day, judges will always defer to the defense because they don't want to see a trial start without the defense saying, Judge, we are ready to take this case to trial. We prepared our defense, and we're ready to go.

INSKEEP: Former federal prosecutor Robert Mintz. Thanks so much.

MINTZ: My pleasure. Transcript provided by NPR, Copyright NPR.

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