Politics, a Prosecutor’s Discretion and Equal Treatment Under the Law

Americans, especially our pundit class, need a tutorial on the rule of law. The federal indictment of Donald Trump has highlighted a vast lack of knowledge about our legal system.

Indictments, by their nature, are one-sided. They represent only what the prosecutor thinks and what they present to 16 to 23 grand jurors. The burden of proof for an indictment is not beyond a reasonable doubt; it is vastly less. The grand jurors only must believe that there is a possibility that the law was violated and that there should be a trial to ascertain the facts.

Grand juries deliberate in secret; trials are public. It is theoretically possible that a grand juror could believe that sufficient evidence was presented behind closed doors to indict, but after hearing from both sides — after listening to the defense — that same grand juror would vote “not guilty.” In a trial, the government’s evidence and its witnesses are tested for the first time by the other side, through cross-examination. The defense is also able to present its own evidence. The indicted defendant can testify, although it is not required.

Make no mistake: The 37-count indictment against Trump is serious. Alleging that Trump improperly possessed classified documents is serious. In our system, no one is above the law. But our justice system obligates us to wait for all the evidence to be heard before we render a verdict.

The Trump case has raised another important aspect of our judicial system: prosecutorial discretion. Just because a prosecutor can indict doesn’t mean that a prosecutor should indict. Prosecutors wield enormous personal power in making that decision. There are no hard-and-fast rules. Rather, the decision to pursue an indictment hinges on the individual prosecutor’s exercise of good judgment and fairness. Because, while no one is above the law, the other cornerstone of our justice system is equal treatment under the law. And this is where our justice system appears to be very selective when it comes to how it handles top officials in possession of classified information.

Consider for a moment that many high-ranking public officials have been accused of keeping classified documents: President Biden (from his time as vice president and as a U.S. senator); former Vice President Mike Pence; former Clinton national security adviser Sandy Berger, who physically removed documents relating to a terror plot from the National Archives and cut some up with scissors; Gen. David Petraeus, who shared notebooks that contained the identities of covert operatives, military strategy and codewords with a biographer with whom he was romantically involved; former Attorney General Alberto Gonzales and former CIA Director John Deutch, both of whom were accused of mishandling classified material. 

In Gonzales’ case, prosecutors decided not to prosecute, and President Bill Clinton pardoned Deutch before he finalized a plea deal. Petraeus and Berger each pleaded guilty to a single misdemeanor (a far lesser charge) and received two years’ probation. 

Then there is the case of Hillary Clinton’s private email server and the classified emails that also ended up on the laptop of Clinton chief of staff Huma Abedin’s then-husband, Anthony Weiner, who served time in prison for sexting a 15-year-old girl. 

Hillary Clinton deleted some 33,000 emails from her private server, on which she conducted government business, because she said that she had determined the emails were “personal.” But she and her lawyers made that determination, not any outside reviewer — and certainly not a jury or the American people. Meanwhile, a State Department investigation ultimately found that 38 past and present employees were “culpable” of improperly sending classified information to Clinton’s private server — meaning they could face disciplinary action or issues regarding their security clearances.

In the case of President Biden, his unlawful possession of classified documents in multiple locations was first uncovered on Nov. 2, six days before the midterm elections. But Biden waited 69 days to reveal the breach to the American people. A special counsel is investigating, but so far nothing has resulted. Notice a pattern here? Hillary Clinton, Huma Abedin, former Vice President Pence, and President Biden thus far have not faced any consequences for their alleged improper treatment of classified information. Yet, under a strict reading of the law, the purported conduct of Clinton, Abedin, Pence, Biden, and Trump was wrong. Why did four of these political figures receive the full benefits of prosecutorial discretion, while the fifth is being subjected to stricter legal scrutiny? Is it possibly because four of them are seen as more likable, or perhaps better dinner party guests, or simply considered less offensive “team players”? Do we want a judicial system where “nice,” “attractive,” or “like-minded” are the criteria that give a prosecutor pause?

Perhaps the choice to indict former President Trump under the espionage act suggests that the prosecutor may try to prove that Trump wanted to use the documents he kept for ill intent. But Trump wouldn’t have needed documents to do that — presidents and top officials can simply whisper information in another person’s ear. Ill intent is a very high bar to prove.

As a special counsel, the prosecutor could have suggested a range of alternatives short of criminal indictment. We will know more only if the Trump case goes to trial. But in the meantime, Congress needs to quickly clarify the statutes regarding the possession of classified information. Equal protection under the law means that politics should have no place in deciding who ends up in a courtroom. 

Greta Van Susteren hosts “The Record with Greta Van Susteren,” a daily news show on Newsmax TV. She previously was host of Gray TV’s nationally syndicated Sunday political affairs program “Full Court Press” and was the station’s group chief national political analyst. For years, she worked as a criminal defense attorney.