Prior to President Donald Trump speaking to reporters about the email controversy involving his daughter, Ivanka Trump, some legal experts were already noting the substantial difference between her case and Hillary Clinton‘s. The word of the day in media is “hypocrisy” and Democrats have already said they want to have an official investigation into Trump’s email use. But are the two situations the same? Or even similar?
Columbia Law professor Jonathan Turley was on Fox News to talk about the issue, and while he noted the supreme and inexplicable irony that a Trump family member would be caught sending government email from a non-government address, he also said some of the very things the president himself said to reporters later in the day Tuesday.
In a different take than the one presented on Fox News by attorney Alan Dershowitz, who said “it’s a non-issue” in both cases, Turley explained in detail some of the big differences in the two situations, and takes both more seriously.
“Well, I simply find this all baffling,” said Turley to start. “I don’t know what it takes to convince government officials to stop doing this. I mean, it just — it is a rather long and steep learning curve apparently for too many people.”
Turley and Dershowitz are not the only two people on Fox News who noted the appalling irony of the situation. Still, there is a substantive difference between what Ivanka Trump did, and what Hillary Clinton did, which Turley noted in detail.
“There are differences,” said the law professor. “In the Clinton case you had a server housed in their house, there was serious questions of whether there was a truthful account. Initially Clinton said there was no classified information, there was in fact classified information. There was a risk. The Clinton people did not assist the State Department when they were trying to find out what damage had been done. So there are differences.”
“But at the end of the day you still have to say or ask: ‘Why? Why would you do this?’” he said.
Fox’s Bill Hemmer asked whether the Trump administration is correct to say this isn’t “apples to apples”, and Turley agreed again that it is not the same situation.
“I don’t think it is, on all fours, like what happened with Clinton. I think the Clinton matter was more serious,” he said. “The type of information that was going through [Ivanka’s] private email doesn’t really reach the same level as what we had with Hillary Clinton who, after all, was the head of an agency that had classification authority in and of itself.”
It is not just Turley’s cable news argument, though. The rules that apply in the two cases actually are different. It is 18 USC 793 that would be the applicable statute in the case of Hillary Clinton’s emails. An excerpt:
Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense,(1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—Shall be fined under this title or imprisoned not more than ten years, or both.
It is a very serious thing indeed.
For a refresher, here is what then-FBI Director James Comey found regarding the Clinton emails:
From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification. Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential; the information in those had not been classified at the time the e-mails were sent.
For example, seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation. In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on e-mail (that is, excluding the later “up-classified” e-mails).
None of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails were housed on unclassified personal servers not even supported by full-time security staff, like those found at Departments and Agencies of the U.S. Government—or even with a commercial service like Gmail.
Separately, it is important to say something about the marking of classified information. Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information. But even if information is not marked “classified” in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.
You can watch the full presser from 2016 here.
In Ivanka Trump’s case, there was no classified intelligence, nor emails about or related to classified or sensitive information, nor were they sent from a basement server.
From the Washington Post‘s original report:
Ivanka Trump and her husband set up personal emails with the domain “ijkfamily.com” through a Microsoft system in December 2016, as they were preparing to move to Washington so Kushner could join the White House, according to people familiar with the arrangement.
The couple’s emails are prescreened by the Trump Organization for security problems such as viruses but are stored by Microsoft, the people said.
Trump used her personal account to discuss government policies and official business fewer than 100 times — often replying to other administration officials who contacted her through her private email, according to people familiar with the review.
Another category of less-substantive emails may have also violated the records law: hundreds of messages related to her official work schedule and travel details that she sent herself and personal assistants who cared for her children and house, they said.
This important Act and subsequent U.S. Code cover the ownership of Presidential records, making them public, and govern the use and creation of those records. In the case of email, using a private, non-government email is a violation of the public trust and interest in transparency and accountability.
But just as the two governing sets of rules are different between the two cases, there was likewise a material difference in the composition of the communication. Here is an excerpt, again from the Washington Post, describing Ivanka Trump’s email use that Democrats now say they are planning to investigate.
“I apologize for reaching out to you on your personal email for this, but it is the only email I have for you,” he wrote, according to an email obtained by American Oversight.
“For future reference my WH email is [redacted],” Ivanka Trump replied. “Thanks for reaching out and making this introduction.”
But other times, Trump used her private email to initiate official business.
In April 2017, she used her personal email to write to Treasury Secretary Steven Mnuchin’s chief of staff, Eli Miller, suggesting that he connect with her chief of staff, Julie Radford. The email chain, obtained by American Oversight, was copied to Radford’s government account.
“It would be great if you both could connect next week to discuss [redacted],” she wrote. “We would love your feedback and input as we structure.”
There is little question that there is a violation, and less that it’s an amazing one for a Trump to make after the Clinton situation. But the stark difference between the two situations, in composition, volume, seriousness, sensitivity, medium, and criminality, is undeniable. They are not the same.