'Arbitrary Enforcement' of Federal Law Roils Classified Documents Case

Judge Aileen Cannon noted the selective prosecution of Donald Trump for keeping national defense papers the same week Special Counsel Robert Hur publicly defended his decision not to charge Joe Biden.

Many words and terms and definitions were tossed about during a nearly four-hour court hearing last Thursday related to Donald Trump’s alleged mishandling of national security records; lawyers representing the former president sparred with federal prosecutors representing Special Counsel Jack Smith over the language in the Espionage Act, which represents 32 counts in Smith’s sprawling criminal indictment against Trump and two co-defendants in the southern district of Florida.

The government’s indictment accuses the former president of “having unauthorized possession of, access to, and control over documents relating to the national defense, did willfully retain the documents and fail to deliver them to the officer and employee of the United States entitled to receive them.”

But one word not in the indictment nonetheless best demonstrated what the defense and U.S. District Court Judge Aileen Cannon, the Trump appointee overseeing the case, consider the “arbitrary enforcement” of the law: ghostwriter.

At one point during the court proceeding on March 14 in Fort Pierce, Florida to debate two defense motions asking Cannon to dismiss the case, Jay Bratt, Smith’s lead prosecutor on the case, described an alleged incident at Trump’s office in Bedminster, New Jersey in July 2021.

Bratt recounted how Trump allegedly flashed top secret military plans to several people during a meeting to discuss a forthcoming book on Mark Meadows, Trump’s former chief of staff.

One individual at the meeting, Bratt stated, was Meadows’ “ghostwriter.” 

Bratt and his team probably regretted the reference. Just 48 hours earlier, former Special Counsel Robert Hur, appointed to investigate Joe Biden’s hoarding of classified records at numerous locations over a period of years, defended his decision not to charge Biden or his ghostwriter for similar offenses.

During testimony before the House Judiciary Committee on March 12, Hur took heat from both Republicans and Democrats over the content of his report, which took jabs at Biden’s deteriorating mental faculties, and charging decisions for both Biden and his ghostwriter, Mark Zwonitzer. 

Hur’s investigation determined that Zwonitzer, who wrote Biden’s book, “Promise Me, Dad,” deleted recordings of Biden that proved he knew he had classified files in his possession—tapes the ghostwriter destroyed after Hur’s appointment was announced.

The recordings, Hur concluded, had “significant evidentiary value.” Among the deleted audio files was a February 2017 interview when Biden told Zwonitzer he "just found all the classified stuff downstairs,” referring to top secret files related to the war in Afghanistan and a 2009 memo Biden wrote to President Obama about his opposition to troop surges in the region.

“The practices of retaining classified material in unsecured locations and reading classified material to one's ghostwriter present serious risks to national security, given the vulnerability of extraordinarily sensitive information to loss or compromise to America's adversaries,” Hur concluded in his 388-page report. “The Department routinely highlights such risks when pursuing classified mishandling prosecutions.”

But Hur declined to bring espionage or obstruction charges against Biden and Zwonitzer despite conduct, as I explained here, far more egregious than what Trump is accused of doing.

Representative Matt Gaetz (R-Fla.) blasted Hur for letting Biden and his ghostwriter off the hook. “So the ghostwriter purposefully deletes this evidence that seems to be, that shows culpability of Biden’s crimes, and you don’t charge him,” Gaetz fumed. “Why did you not charge the ghostwriter with obstructing justice and deleting evidence? Zwonitzer should have been charged [but] wasn’t. Biden and Trump should have been treated equally [but] they weren’t. And that is the double standard a lot of Americans are concerned about.”

As Biden skates because Hur ultimately concluded a jury would not convict a “sympathetic, well-meaning elderly man with a poor memory” despite uncovering evidence that Biden “willfully retained and disclosed classified materials after his vice presidency” including national defense information, Trump has already spent two days this month in a federal courtroom in southern Florida where he faces 40 criminal counts for violating the Espionage Act, obstructing justice, and attempting to destroy evidence.

Trump’s private residence was raided by armed FBI agents, who absconded with 13,000 pieces of “evidence” of which only 102 files contained classified markings; Biden deployed government staff to search for classified records at his home, Penn Biden Center, and University of Delaware for months without the prying eye of investigators and was subjected to gentlemanly searches by FBI agents who helpfully reorganized one sloppy box of evidence found in his garage.

One ghostwriter presumably will be a government witness in Trump’s classified documents trial; another ghostwriter hit the town, a free man, after Hur’s testimony.

“Arbitrary Enforcement” Indeed

The brazen hypocrisy is not lost on Team Trump or Judge Cannon as Hur represented the elephant in the room during the March 14 hearing. “This case stands alone as applied to President Donald Trump,” Emil Bove, one of Trump’s defense attorneys, said at the onset. 

Cannon repeatedly asked both sides for examples of criminal prosecution for “other officials who did the same.” She questioned the “arbitrary enforcement” of the espionage statute, forcing the government to admit that no other former president or vice president has faced criminal prosecution for keeping similar documents and failing to return them. “This speaks to the arbitrary enforcement…featuring in this case,” Cannon told Bratt.

Cannon also pushed back on claims Trump should have expected to face prosecution for storing classified files. Once again noting no former president or vice president—Mike Pence also discovered classified records after Trump was indicted in 2023—has been charged, Cannon suggested it was fair for Trump to expect the same treatment since “no historical precedent” is on the books. “Given that landscape,” Cannon continued, Trump could argue he has been unfairly targeted.

Which his team already has. In a motion emailed to the court and the government last month, Trump’s attorneys asked to dismiss the case based on “selective and vindictive prosecution.” Although the motion is not public, Jack Smith quickly responded to defend the Department of Justice’s choice to pursue Trump and not Biden.

“Trump, unlike Biden, is alleged to have engaged in extensive and repeated efforts to obstruct justice and thwart the return of documents bearing classification markings, which provides particularly strong evidence of willfulness and is a paradigmatic aggravating factor that prosecutors routinely rely on when making charging decisions,” Smith wrote in a March 7 response. “Second, the evidence concerning the two men’s intent—whether they knowingly possessed and willfully retained such documents—is starkly different.”

In an almost comical passage, Smith admits Biden unlawfully retained classified records—just not as many as Trump. “Biden possessed 88 documents bearing classification markings, including 18 marked Top Secret. By contrast, Trump possessed 337 documents bearing classification markings, including 64 marked Top Secret.

Ah ok. So Biden was just a little bit pregnant…

Trump Will Face a Jury: Biden Will Not

Cannon also pressed the government to confirm the exact date when Trump’s alleged “crime” of knowingly retaining national defense papers and failing to return them began. Bratt, pointing to the indictment, claimed the crime commenced on January 21, 2021, the day after Trump left office.

Which means Biden’s classified documents crime spree began in the 1970s; papers bearing classified markings dating back to his time in the U.S. Senate and related to national defense were found among Biden’s archive of records at the University of Delaware and his home.

Despite a half-century practice of unlawfully handling classified files—minus his time as vice president and president—Biden, unlike Trump, will not face a jury. “It would be difficult to convince a jury they should convict him by then a former president who will be at least well into his eighties-of a serious felony that requires a mental state of willfulness,” Hur concluded.

Meanwhile, Cannon soon is expected to announce a new trial date in southern Florida; jury selection could begin soon if Cannon sets a trial date for late summer as American prepare to vote in the 2024 presidential election—unless Cannon take the rare and bold move of dismissing the case on Trump’s selective prosecution motion. (On Thursday evening, Cannon denied one of the two motions to dismiss debated during the hearing.)

Given her comments last week, no one should be surprised if she does exactly that.