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The Dangerous Whataboutism in the Trump Classified Docs Case

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McQuade is a professor at the University of Michigan Law School, a former U.S. Attorney for the Eastern District of Michigan and an NBC News and MSNBC legal analyst. Her forthcoming book is Attack from Within: How Disinformation is Sabotaging America.

The indictment of Donald Trump on charges of retaining government documents brought with it the inevitable false equivalencies of the conduct of Trump’s chief political rival. But the actions of the two men are as different as deliberately driving your car into a crowd of people and committing a fender-bender. Both acts involve cars, but the similarities end there. Whataboutism may have become a common political ploy but it is a trick straight out of the disinformation playbook.

On Thursday, a grand jury returned an indictment charging Trump with 37 counts encompassing violations of the Espionage Act, obstruction of justice, false statements, and conspiracy. The charges are based on his months-long battle with the National Archives and the Justice Department over government documents with classified markings that Trump claims are his, even though the Presidential Records Act makes them the property of the United States. The 49-page indictment details Trump’s efforts to deceive the Archives, the FBI, and even his own lawyers.

In contrast, Biden, as well as Trump’s vice president, Mike Pence, have come forward with information in the past year that they each had inadvertently retained classified documents at the end of their terms as vice president. Both men returned the documents and allowed the FBI to search their homes for any stray records. Attorney General Merrick Garland has appointed a special counsel to investigate Biden, and the probe into Pence was recently closed without charges.

The mishandling of classified documents is a careless act that risks our national security, to be sure, but the conduct that has been publicly attributed to Biden and Pence to date is the not the type of offense for which prosecutors typically file charges. Government employees who unintentionally mishandle government documents may be disciplined, lose their security clearances, or be fired, but criminal charges may be filed only if prosecutors can prove criminal intent. In addition, as former FBI Director James Comey stated in 2016 when he recommended no charges be filed against Hillary Clinton over her use of a private email server, prosecutors historically have elevated the response to criminal charges only when a case includes some aggravating factor, such as willfulness, obstruction of justice, exposure of vast quantities of material to individuals unauthorized to receive it, or disloyalty to the U.S. And when one or more of these factors are met, DOJ regularly charges former government employees who deliberately take or retain government documents. Just last week, a retired air force officer was sentenced to three years in prison for knowingly taking and storing more than 300 classified documents at his Florida home.

Trump’s conduct is more analogous to the former officer than to Biden or Pence. If the former president had simply brought home classified documents in the chaos of moving out of the White House at the end of his administration, the Archives likely would have been happy with their quiet return. In fact, for 18 months following Trump’s departure, the Archives persisted in their requests to retrieve the documents, and Trump rebuffed them every time. Even the August 2022 search that the FBI executed at Trump’s Mar-a-Lago home could have been a quiet matter that ended the dispute until Trump publicly announced it himself. Never one to miss an opportunity to label himself a victim, Trump spent the next year complaining that the search amounted to “spying” on political rivals. In November, he told a crowd of rallygoers in Iowa that “they” were “silencing dissent and using the full force of government, law enforcement, and the media to try and defeat the greatest movement in the history of our country. MAGA! MAGA!”

In light of the government’s obligation to safeguard our nation’s secrets, Trump left DOJ with little option but to indict him. Prosecutors use criminal charges to deter government employees from committing misconduct, and to hold them accountable when they do. If prosecutors had given Trump a pass on his brazen disregard for the law, DOJ would likely lose its ability to credibly prosecute less powerful government employees who mishandle classified documents. And while critics sometimes argue that the government over-classifies documents, no one would dispute that the documents at issue are incredibly sensitive. The indictment alleges that they relate U.S. nuclear programs and other sensitive military information about the United States and its allies.

Following his indictment, Trump went on the attack against Biden, posting on his Truth Social platform the news that had been charged by “the corrupt Biden Administration,” “seemingly over the Boxes Hoax, even though Joe Biden has 1850 Boxes at the University of Delaware, additional Boxes in Chinatown, D.C., with even more Boxes at the University of Pennsylvania, and documents strewn all over his garage floor where he parks his Corvette, and which is “secured” by only a garage door that is paper thin, and open much of the time.” Trump’s supporters were quick to follow suit. Stating that “Joe Biden was found to have classified information in Delaware, Philadelphia, and Boston,” Sen. Tommy Tuberville (R-AL) called the Trump case a “witch hunt against the Republican front runner” for president in 2024.

Whataboutism is a strategy used by authoritarian leaders to excuse their own misconduct. According to Russian analyst and writer Vadim Nikitin, whataboutism is an essential piece of Kremlin tradecraft. The goal of this tactic is not to convince the public that the leader is innocent, but to portray all politicians are dishonest. Anyone claiming to value integrity is scoffed at as duplicitous or naïve. As former White House Deputy National Security Adviser Ben Rhodes writes in his book, After the Fall, Vladimir Putin came to power not by convincing people that he was honest. “He simply needed to convince people that everyone was corrupt.” And if all governments are corrupt, Rhodes writes, then “Russians might as well have a strong, competent leader who shares their grievances and sense of national greatness.” Echoes of MAGA.

In court, prosecutors will certainly file a motion to preclude the defense from making any references to Biden from the case against Trump. But in the court of public opinion, beware of the cynical tactic to minimize Trump’s grave threat to our national security.

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