FBI

‘But Her Emails’? A Defense of ‘Whataboutism’

8/15/22
by Alan M. Dershowitz,
from The Wall Street Journal,
8/14/22:

Mrs. Clinton should take her hat off. Treating like cases alike is crucial to the equal protection of the law.

Attorney General Merrick Garland is a decent man, and he said the right things in his statement regarding the search of Donald Trump’s residence at Mar-a-Lago: “All Americans are entitled to the evenhanded application of the law, to due process of the law, and to the presumption of innocence.” It is what he didn’t say that raises disturbing questions about the process. Why didn’t the Justice Department seek to enforce the subpoena it apparently had issued, rather than seek a search warrant? Was this consistent with the “standard practice” Mr. Garland articulated in his statement—“to seek less intrusive alternatives to a search” whenever possible?

Why was the matter handled so differently from the prior investigations of Sandy Berger and Hillary Clinton, who were also suspected of mishandling classified material? Mrs. Clinton herself mocked that question by sporting a baseball cap with the logo “But her emails.” Her hat is intended to deride the argument made by Trump supporters and some civil libertarians that the investigation of Mr. Trump’s alleged security breaches should be evaluated against the way in which earlier cases were handled. Berger and Mrs. Clinton were suspected of mishandling confidential materials—he by removing them from the National Archives in 2005, she by transmitting them over her private email server while serving as secretary of state. Berger was administratively fined, and Mrs. Clinton was rebuked by James Comey, then director of the Federal Bureau of Investigation, which might have cost her the 2016 election. But neither was subjected to broad search warrants or criminal prosecution. Those who reject this comparison accuse those who make it of “whataboutism.” But treating like cases alike is crucial to the equal protection of the laws. The way in which Berger and Mrs. Clinton were treated is highly relevant in determining whether Mr. Trump is being subjected to a double standard of justice.

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