Trump and the two-tier problem
Byron York
TRUMP AND THE TWO-TIER PROBLEM. Former President Donald Trump‘s supporters have pointed to the federal indictment against him in the classified documents case, and the absence of any indictment against Hillary Clinton in 2016 in the email investigation, as proof of a “two-tiered system of justice” in the United States.
It is true that the Biden Justice Department has thrown the book at Trump, while the Obama Justice Department did not throw the book at Clinton. “The Obama-Biden Justice Department gave former Secretary of State Hillary Clinton a complete pass on similarly egregious offenses,” former federal prosecutor Andrew McCarthy wrote today.
So what can be done about the imbalance of justice? One option would be for the Justice Department to drop the charges against Trump. But of course, department prosecutors, led by special counsel Jack Smith, have just gone to great lengths to accuse the former president of 37 counts of various felonies. They’re not gonna stop now.
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What about keeping the Trump charges as they are but going back to charge Clinton? First of all, the statute of limitations has passed. Second, it certainly would not be justice for the department to do an about-face on the case against Clinton seven years after then-FBI Director James Comey announced she would not be charged. Finally, given that the department is controlled by Democrats, there is not a smidgen of a chance that would happen, even if it were possible.
So the situation remains: Trump is charged, while Clinton was not. On Fox News’s Special Report on Wednesday, anchor Bret Baier put the question to former Trump Attorney General William Barr, asking whether the Trump and Clinton cases represent a two-tiered system of justice.
Yes, Barr said. “I will stipulate, and I have repeatedly said, that there is a two-tiered system of justice. And in fact, I’ve had to deal with it.” Barr pointed to the case of retired Gen. Michael Flynn, who many Republicans believe was railroaded into pleading guilty in the early stages of the Trump-Russia investigation. In 2020, with Barr in the attorney general’s office, the department dropped the charges.
On Fox, Barr considered what should be done with the Trump matter — specifically the question of whether Trump should never have been charged. “How do you address this unfairness in the system, the two-tiered justice?” he said. “Do you do it by letting someone who has, if you believe they flagrantly violated the law, do you give them a pass? Is that how we fix the two-tiered system of justice? Because it’s not unjust to that person to hold him to account if in fact they committed a flagrant violation. I think the injustice in the situation is a failure to do things six years earlier on Hillary Clinton. And I think you address that by trying to uphold the right standard and apply it to people as they go. You don’t get to restore the rule of law by further derogating from the rule of law.”
Barr has said on several occasions that he believes the Justice Department has a strong case against Trump — so strong that Barr said last weekend, “If even half of it is true, then [Trump] is toast.”
So what about Barr’s solution? It simply does not address the specific imbalance that exists — that is, Trump prosecution vs. Clinton nonprosecution. Rather, it seeks to create balance going forward, beginning with what Barr says is a firmly based prosecution of Trump.
Perhaps that is the only way to do it. No one can time-travel to 2016 and redo the Clinton case. But perhaps there is another solution, and that is for the Justice Department to show more caution when jumping into highly politicized matters. In the 2016 presidential election, both major party candidates were under FBI investigation. Now, maybe both candidates were particularly suspicious types. Or maybe the Justice Department was getting too deeply involved in matters where it should have exercised great restraint. That could be a lesson for the future.
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