Why Republicans are trying to make Trump's trial about Hillary Clinton

Republicans are split over the Justice Department's 37-count indictment of former President Donald Trump on charges of willfully and carelessly hoarding classified national security documents at his Mar-a-Lago club and deceitfully obstructing the government's efforts to get them back. Some Republicans argue that the Justice Department is going after Trump for purely political reasons, while others call the charges extremely serious and troublesome.

But they all seem to agree on at least one point: Hillary Clinton's emails.

"Republicans across the country are bashing Hillary Clinton, making her a central figure in the 2024 race by renewing their intense criticism of her alleged handling of sensitive information," Axios reported.

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In the days since Trump was indicted, "Republicans across the ideological spectrum" have "insistently brought up the eight-year-old controversy" around Clinton's use of a private email server to communicate as secretary of state, The New York Times added. "They have peppered speeches, social media posts and television appearances with fiery condemnations of the fact that Mrs. Clinton, a figure who continues to evoke visceral reactions among the Republican base, was never charged" in an FBI investigation that dogged her 2016 campaign against Trump.

President Biden is under investigation for retaining (and proactively returning) classified documents, and Trump's former vice president, Mike Pence, was recently told he will not face charges for his holding on to classified records. Both Biden and Pence are running against Trump this year. So why are Republicans fixating on Clinton's emails?

What point are Republicans trying to make?

The insinuation in the references to Clinton's emails is that the FBI and Justice Department are vigorously going after Trump for partisan reasons while letting Democrats off scot-free — that Trump is, in fact, the victim of a "witch hunt."

"Most Republicans believe we live in a country where Hillary Clinton did similar things and nothing happened to her," Sen. Lindsey Graham (R-S.C.) told ABC News on Sunday. Sen. Joni Ernst (R-Iowa) said "it seems there's two systems of justice here: one for President Trump and one for everybody else that has had classified documents."

Republicans are also bringing up Clinton as a foil because they are "mindful that little more than the word 'emails' can muddy the waters, broadcast their loyalties and rile up their base," the Times reports. "There are few politicians on the Democratic side of the aisle that raise the ire of Republicans more than Hillary Clinton," said veteran GOP pollster Neil Newhouse.

Are the cases, in fact, similar?

They both concern federal investigations into the handling of classified documents by former high-ranking government officials who are leading candidates for president. But then the cases diverge. "The circumstances of Clinton's emails and Trump's boxes are not remotely similar, no matter how loudly Trump and his allies insist otherwise," Ruth Marcus argued at The Washington Post. "Trump's behavior is far more egregious."

The key difference is that in Clinton's case, as the Department of Justice inspector general reported, "there was no evidence that Hillary Clinton sought to obstruct justice," veteran GOP attorney Robert Kelner agreed. "The focus of the Trump indictment is on his rather stark effort to obstruct justice."

The State Department, after a multiyear investigation of Clinton's emails during the Trump administration, found that "there was no persuasive evidence of systemic, deliberate mishandling of classified information" by Clinton. Justice Department Inspector General Michael Horowitz also concluded in 2018, after a separate investigation of Clinton's server, that he in fact discovered "evidence of a conscious effort to avoid sending classified information by writing around the most sensitive material."

James Comey, the FBI director who oversaw the 2016 Clinton investigation, explained at the time why "no reasonable prosecutor" would bring a case against her. All the previous cases that were prosecuted, he said, "involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here."

Special counsel Jack Smith laid out a case that Trump is guilty of all of those criteria except, probably, indications of disloyalty to the U.S. "Prosecutors are supposed to treat like cases alike," Marcus wrote. "These are not like cases, no matter how loudly Graham and other Trump apologists proclaim otherwise."

Could fixating on Hillary's emails backfire?

The "but her emails" rejoinder does have potential downsides. It serves as a reminder that Trump's signature campaign chant in 2016 was "Lock her up!" — suggesting Trump and his voters aren't opposed to prosecuting leading presidential candidates in principle. And it also resurrects a series of videos of Trump seeking to distinguish himself from Clinton.

"In my administration, I'm going to enforce all laws concerning the protection of classified information," Trump said at an August 2016 rally in North Carolina. "No one will be above the law." Smith's indictment included that and four other statements Trump made on the 2016 campaign trail to underscore his professed understanding of the importance of protecting U.S. secrets.

So why are Republicans rehashing Clinton's emails?

"The perception is that she was treated differently," former Arkansas Gov. Asa Hutchinson (R), a longtime Clinton antagonist and 2024 Trump rival, told the Times. "Perception can become a reality very quickly," and even if that perception is wrong, "if the voters say it's relevant, it becomes relevant politically."

Also, "it's much harder to run against yourself than a foil — and Trump's federal indictment sets him up for a fight against his own words," Alexi McCammond noted at Axios. Maybe everyone can agree that "it is a stunning moment in American politics when the same issue that thrust Trump to the White House could now be what keeps him from going back there."