随着更多关于为什么联邦调查局决定突袭前任主席唐纳德·特朗普本月早些时候，特朗普和他的盟友都越来越多地暗示，联邦调查局对待他的方式与对待他的方式不同希拉里·克林顿她避免了因在担任国务卿期间使用私人电子邮件服务器而受到的指控。
”詹姆斯·科米念出了所有的名单...希拉里·克林顿的罪行，只是说没有一个合理的检察官会起诉，”特朗普在上周末的一篇社交媒体帖子中谈到这位前联邦调查局局长。
但对两项调查的政府文件的审查表明，克林顿案件中发现的证据和特朗普调查中已经公开记录的证据之间存在重大差异。
比较机密信息
特朗普的一些盟友声称，克林顿涉嫌错误处理敏感信息的方式——正如一位权威人士所言——比特朗普涉嫌的方式“严重得多”。
只是表面上，包含机密信息的项目数量不同。在克林顿一案中，联邦当局发现了“大约193封个人邮件”,这些邮件在发送时包含了一定程度的机密信息2018年报告来自司法部的监察长。
在特朗普的案件中，联邦当局已经确定了存放在Mar-a-Lago的超过322份包含机密信息的个人文件:根据司法部在法庭上的文件，今年早些时候检索到了184份包含机密信息的“独特文件”，6月份检索到了另外38份此类文件，然后在联邦调查局8月8日的突袭中发现了100多份标有“机密”的文件。
在克林顿的案件中，当局认为她服务器上最敏感的“绝密”信息与一个严密保护的“特别访问计划”有关，并与之相关联，监察长说，“调查人员发现了有意识地避免发送机密信息的证据，方法是围绕最敏感的材料写作。”
“有权限的人有时会在不安全的环境下讨论机密问题，这并不罕见，”前联邦检察官托尼·马蒂维(Tony Mattivi)说，他曾在堪萨斯州协调司法部的反情报和反恐案件。“当你需要与某些人交谈或做某些事情时，你不能总是呆在一个安全的房间里，所以你这样做的方式是围绕机密部分进行交谈。...(但)这与拥有机密材料非常不同。”
相比之下，根据司法部和国家档案馆的数据，联邦当局已经从Mar-a-Lago恢复了100多份标有“秘密”的“独特文件”和数十份标有“绝密”的其他文件，包括“特别访问计划材料”。司法部表示，在特朗普办公室的桌子里发现了一些标有“机密”的文件。
因此，共和党人马蒂维(Mattivi)表示，特朗普涉嫌处理机密文件与司法部监察长所说的克林顿案件中发生的事情之间存在“有意义的区别”。马蒂维最近在竞选堪萨斯州总检察长的初选中失利。
证据在哪里-真的吗?
在指责联邦调查局区别对待特朗普和克林顿时，特朗普的盟友公开指出——尽管克林顿可能泄露机密信息——“我们没有搜查她的家，”作为特朗普的前中情局局长，迈克·蓬佩奥，最近放的。
但在他关于克林顿事件的报告中，司法部监察长明确表示，该案中的联邦调查人员能够获得材料有争议的是克林顿的私人邮件服务器和邮件本身，但没有搜查她的家。
“在可能的情况下，寻求侵入性较低的手段作为搜查的替代方式是标准做法，”司法部长梅里克·加兰在特朗普房产被搜查后的一份声明中说。
正如监察长关于克林顿事件的报告所述，联邦调查局从克林顿和她的助手那里“获得了30多台设备”，并“获得了在大多数这些设备上搜索克林顿相关通信的同意。”在这30台设备中，有两台是克林顿的三个私人电子邮件服务器，第三台服务器早在几年前就被“丢弃”了，“因此，联邦调查局永远无法访问它进行审查，”监察长的报告说。
在特朗普的案件中，正在进行的调查的核心证据仍在Mar-a-Lago，即使三个月前联邦大陪审团的传票指示“任何和所有文件”都标有“机密”被翻过。
特朗普的律师强调，作为对传票的回应，他们向联邦调查局提供了“文件”，但在一份周二提交法庭文件司法部表示，“通过进一步调查，联邦调查局发现了多个证据来源，表明对5月11日大陪审团传票的回应不完整，机密文件仍在[Mar-a-Lago]。”
“政府还开发了证据，证明政府记录可能被隐藏并从(Mar-a-Lago的)储藏室中移走，而且很可能采取措施阻挠政府的调查，”司法部表示。
意图是什么?
关于是否起诉特朗普或他的助手的最终决定可能取决于检察官对他们将标有“机密”的文件带到Mar-a-Lago，然后拒绝美国政府收回这些文件的努力的意图有何发现。
公开发行的宣誓书的部分内容用于支持联邦调查局对Mar-a-Lago的突袭，称联邦调查局正在调查特朗普是否参与了“故意”不当处理与国防有关的文件或信息，如美国法典第18条第793(e)款所定义的那样。
联邦检察官在考虑指控克林顿和她的助手在她的私人电子邮件服务器上发现的机密信息时，参考了同样的法规。
要指控他们中的任何人违反第793(e)条，检察官必须证明克林顿或她的助手的行为是“故意的”，并且“意图做一些法律禁止的事情”，司法部的监察长在关于此案的报告中说。
检察官认定，克林顿案件的证据和事实表明，“缺乏在非机密系统上交流机密信息的意图”，特别是因为“克林顿收到的电子邮件中有一封被适当标记，以告知她信息的机密状态”，调查人员发现证据表明，克林顿和她的助手“精心措辞电子邮件，试图‘绕开’机密信息，”根据监察长的报告。
“没有证据表明发件人或前国务卿克林顿相信或知道当时的电子邮件包含机密信息，”检察官总结说，根据监察长。
检察长说，因此检察官决定“没有依据”指控克林顿或她的助手。
总检察长表示，这一决定“符合司法部在不同领导下处理以往案件的历史方法”，并指出他的办公室“没有发现证据表明检察官的结论受到偏见或其他不当考虑的影响。”
然而，在2016年7月宣布联邦调查局调查结果的有争议的新闻发布会上，科米说，尽管缺乏足够的证据提起指控，但克林顿和她的助手在处理“非常敏感、高度机密的信息”时仍然“极其粗心”，并指出他们发送的电子邮件“没有一封应该在任何非机密系统上。”
FBI Director James Comey makes a statement, on Hillary Clinton's server contained classified information, at FBI Headquarters in Washington, July 5, 2016.
克里夫·欧文/美联社照片
在竞选期间，当时的候选人特朗普回应这些言论时坚称克林顿“有罪”，但联邦调查局“让她摆脱了困境”。此后，他又重复了这些说法。
在针对特朗普的最新案件中，尚不清楚联邦调查局发现了什么证据(如果有的话)与特朗普或他的助手涉嫌在Mar-a-Lago保留数百份标有“机密”的文件的意图有关。
但自联邦调查局在Mar-a-Lago的突袭行动以来，特朗普和他的团队声称，特朗普在任职期间发布了“一项长期命令，即从椭圆形办公室移除并带到住所的文件在他移除时被视为解密。”特朗普在社交媒体上表示，Mar-a-Lago的文件“全部解密”。
马蒂维说，解密大量文件的“长期命令”的想法“非常荒谬”
“因为有一个过程，而这个过程的一部分涉及到(发起机构)了解他们的信息正在被做什么，”他说。
司法部在周二的法庭文件中表示，今年1月，当向国家档案馆提供一组初始文件时，甚至就在最近的6月，当向联邦调查局提供对大陪审团机密文件传票的有限回应时，特朗普和他的法律团队都没有声称这些文件已经解密。
特朗普“撕毁”记录
根据特朗普案件中公布的经编辑的宣誓书，联邦调查局现在也在调查特朗普或他的助手是否违反了一项联邦法律，该法律将“故意”隐藏、删除或篡改联邦记录定为刑事犯罪。
2016年，联邦检察官考虑指控克林顿或她的助手违反同一法律----美国法典18第2071条----此前，她的法律团队错误地将3万多封电子邮件视为私人性质，从服务器上删除。
“这项法令的目的是禁止剥夺政府使用其文件的行为，如删除、更改或销毁文件，”司法部监察长在关于克林顿调查的报告中说。
监察长说，克林顿案的证人告诉调查人员，他们“预计发送到state.gov地址的任何电子邮件都将被保留”，而且这些电子邮件中有许多是从其他设备上获取的，所以“没有证据表明克林顿或其他任何人”打算隐藏、删除或销毁政府系统中的电子邮件。
此外，联邦检察官得出结论，与支持克林顿案件的电子通信不同，“根据第2071条提起的每一起起诉都涉及”文件的“物理删除”或销毁，检察长说。
联邦当局现在表示，特朗普的行为可能符合这一模式。
今年1月，在经过长达数月的努力从特朗普那里检索政府记录后，国家档案馆公开发布了一份声明，称其从Mar-a-Lago获得的“一些特朗普总统记录”包括被前总统特朗普撕毁的纸质记录。司法部在周二的文件中表示，国家档案馆随后将此事提交给了司法部，指出这可能违反了第2071条。
“最大的不同”
马蒂维说，这两种情况下的差异归结于已知和未知。
马蒂维说:“现在希拉里·克林顿和唐纳德·特朗普之间最大的区别是，对于克林顿来说，“我们知道没有起诉——那艘船已经航行了。”
“对于特朗普，我们不知道会发生什么，”马蒂维说。
No, the FBI's Trump investigation is not just like the Hillary Clinton email probe. Here's why
As more details emerge about why the FBIdecided to raidformer PresidentDonald Trump's Mar-a-Lago estate earlier this month, both Trump and his allies are increasingly suggesting the FBI is treating him differently than it treatedHillary Clinton, who avoided charges for her use of a private email server as secretary of state.
"James Comey read off a list of all ... Hillary Clinton's crimes, only to say that no reasonable prosecutor would prosecute," Trump said of the former FBI director in a social media post this past weekend.
But a review of government documents from both investigations suggests there are key differences between the evidence uncovered in Clinton's case and the evidence already publicly documented in the Trump investigation.
Comparing classified info
Some of Trump's allies claim that the way Clinton allegedly mishandled sensitive information was -- as one pundit put it -- "a lot more serious" than the way Trump allegedly did.
Just on the surface, the number of items containing classified information is different. In the Clinton case, federal authorities identified "approximately 193 individual emails" that, when sent, contained some level of classified information, according to a2018 reportfrom the Justice Department's inspector general.
In the Trump case, federal authorities have identified more than 322 individual documents containing classified information that were kept at Mar-a-Lago: 184 "unique documents" containing classified information were retrieved early this year, another 38 such documents were retrieved in June, and then more than 100 more documents marked "classified" were found during the FBI raid on August 8, according to Justice Department filings in court.
In Clinton's case, the most sensitive "top secret" information on her servers was deemed by authorities to be "relevant to" and "associated with" a tightly-guarded "Special Access Program" -- and the inspector general said that "investigators found evidence of a conscious effort to avoid sending classified information, by writing around the most sensitive material."
"It's not unusual for folks with clearances to sometimes discuss classified matters in unsecure settings," said Tony Mattivi, a former federal prosecutor who coordinated the Justice Department's counterintelligence and counterterrorism cases in Kansas. "You can't always be in a [secure room] when you need to talk to some people or do certain things, so the way you do that is talk around the classified part. ... [But] that's very different than possessing classified material."
In contrast, federal authorities have recovered from Mar-a-Lago more than 100 "unique documents" marked "secret" and dozens of other documents marked "top secret," including "Special Access Program materials," according to the Justice Department and National Archives. Some of those documents marked "classified" were found inside Trump's desk in his office, the Justice Department said.
Accordingly, there "is a meaningful distinction" between Trump's alleged handling of classified documents and what the Justice Department's inspector general says transpired in the Clinton case, according to Mattivi, a Republican who recently lost a primary race to become attorney general of Kansas.
Where's the evidence -- literally?
In accusing the FBI of treating Trump and Clinton differently, Trump's allies have publicly noted that -- even though Clinton potentially compromised classified information -- "we didn't raid her home," as Trump's former CIA director,Mike Pompeo, recently put it.
But in his report on the Clinton matter, the Justice Department's inspector general made clear that federal investigators in that case wereable to obtain the materialsat issue -- Clinton's private email servers and the emails themselves -- without raiding her home.
"Where possible, it is standard practice to seek less intrusive means as an alternative to a search," Attorney General Merrick Garland said in a statement after the raid on Trump's estate.
As described in the inspector general's report on the Clinton matter, "the FBI obtained more than 30 devices" from Clinton and her aides, and "received consent to search Clinton-related communications on most of these devices." Among those 30 devices were two of Clinton's three private email servers, after the third server had been "discarded" years earlier "and, thus, the FBI was never able to access it for review," the inspector general's report said.
In Trump's case, the evidence at the center of the ongoing investigation was still being held at Mar-a-Lago, even after a federal grand jury subpoena three months earlier instructed that "any and all documents" marked "classified"be turned over.
Trump's lawyers have emphasized that "documents were provided" to the FBI in response to the subpoena, but in acourt filing Tuesday, the Justice Department said, "Through further investigation, the FBI uncovered multiple sources of evidence indicating that the response to the May 11 grand jury subpoena was incomplete and that classified documents remained at [Mar-a-Lago]."
"The government also developed evidence that government records were likely concealed and removed from the Storage Room [at Mar-a-Lago] and that efforts were likely taken to obstruct the government's investigation," the Justice Department said.
What's the intent?
The final decision over whether to charge Trump or his aides may rest on what prosecutors find about their intent in taking documents marked "classified" to Mar-a-Lago and then rebuffing the U.S. government's efforts to reclaim those documents.
Publicly-releasedportions of the affidavitused to support the FBI raid of Mar-a-Lago say that the FBI is investigating, among other potential crimes, whether Trump engaged in the "willful" mishandling of documents or information relating to the national defense, as defined by section 793(e) of U.S. code 18.
Federal prosecutors looked at the same statute when contemplating charges against Clinton and her aides for the classified information found on her private email servers.
To charge any of them with violating 793(e), prosecutors would have had to prove beyond a reasonable doubt that Clinton or her aides acted "willfully" and "with the intent to do something the law forbids," the Justice Department's inspector general said in its report on the case.
Prosecutors determined that the evidence and facts of Clinton's case showed "a lack of intent to communicate classified information on unclassified systems," especially since "[n]one of the emails Clinton received were properly marked to inform her of the classified status of the information," and investigators found evidence that Clinton and her aides "worded emails carefully in an attempt to 'talk around' classified information," according to the inspector general's report.
"There was no evidence that the senders or former Secretary Clinton believed or were aware at the time that the emails contained classified information," prosecutors concluded, according to the inspector general.
So prosecutors decided "there was no basis" to charge Clinton or her aides, the inspector general said.
That decision "was consistent with the Department's historical approach in prior cases under different leadership," the inspector general said, noting his office "found no evidence that the conclusions by the prosecutors were affected by bias or other improper considerations."
Nevertheless, in his controversial July 2016 press conference announcing the FBI's findings, Comey said that -- despite a lack of sufficient evidence to bring charges -- Clinton and her aides were still "extremely careless" in handing "very sensitive, highly classified information," noting that "none" of the emails they sent "should have been on any kind of unclassified system."
Responding to those remarks while still on the campaign trail, then-candidate Trump insisted Clinton was "so guilty" but the FBI "let her off the hook." He has since repeated those claims.
In the latest case targeting Trump, it's unclear what -- if any -- evidence the FBI has uncovered relating to the intent of Trump or his aides in allegedly keeping hundreds of documents marked "classified" at Mar-a-Lago.
But since the FBI's raid at Mar-a-Lago, Trump and his team have claimed that, while still in office, Trump issued "a standing order that documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them." And Trump has said on social media that the documents at Mar-a-Lago were "all declassified."
Mattivi said the idea of a "standing order" declassifying swaths of documents "is preposterous."
"Because there is a process, and part of the process involves the [originating agencies] knowing what's being done with their information," he said.
In its court filing on Tuesday, the Justice Department said that in January, when providing an initial set of documents to the National Archives, and even as recently as June, when providing the FBI with a limited response to the grand jury subpoena for classified documents, neither Trump nor his legal team had claimed the documents were declassified.
Records 'torn up' by Trump
According to the redacted affidavit released in Trump's case, the FBI is also now investigating whether Trump or his aides may have violated a federal law that criminalizes the "willful" concealment, removal or mutilation of federal records.
In 2016, federal prosecutors contemplated charging Clinton or her aides for violating the same law -- Section 2071 of U.S. Code 18 -- after more than 30,000 emails, which her legal team erroneously deemed personal in nature, were deleted from a server.
"The purpose of this statute is to prohibit conduct that deprives the government of the use of its documents, such as by removing and altering or destroying them," the Justice Department's inspector general said in his report about the Clinton investigation.
Witnesses in the Clinton case told investigators they "expected that any emails sent to a state.gov address would be preserved" -- and many of those emails were acquired from other devices -- so "there was no evidence that Clinton or anyone else" intended to conceal, remove or destroy the emails from government systems, the inspector general said.
In addition, federal prosecutors concluded that, unlike the electronic communications underpinning Clinton's case, "every prosecution under Section 2071 has involved" the "physical removal" or destruction of a document, the inspector general said.
Federal authorities now suggest Trump's actions might fit that mold.
In January, after a months-long effort to retrieve government records from Trump, the National Archives publicly released a statement saying "some of the Trump presidential records" it received from Mar-a-Lago "included paper records that had been torn up by former President Trump." The National Archives then referred the matter to the Justice Department, flagging that it could constitute a violation of Section 2071, the Justice Department said in its Tuesday filing.
'The biggest difference'
Mattivi said that the difference in the two cases comes down to what's known versus what's not.
"The biggest difference right now between Hillary Clinton and Donald Trump" is that with Clinton, "we know there was no prosecution -- that ship has sailed," said Mattivi.
"With Trump, we don't know what's going to happen," Mattivi said.
