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Trump classified documents case differs from Biden, Clinton, Pence issues — here’s how

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Trump classified documents case differs from Biden, Clinton, Pence issues — here’s how

WASHINGTON — As former President Donald Trump faces 37 federal counts for hoarding hundreds of classified documents after he left the White House, many of his supporters insist Trump is being unjustly targeted.

They point out, correctly, that Trump is not the only public figure in recent years who had classified material outside of secure settings.

But what they don’t say is that Trump is the only former official who refused to return all the classified documents as soon as he was asked about them. Nor do they say that Trump is the only official who tried to prevent investigators from discovering additional classified records he had in his possession, as alleged in the indictment against him.

Trump’s alleged intent, namely to keep the documents, and his lack of transparency about what he had is what elevates his case from an unfortunate filing accident to a crime, experts say.

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Clinton, Biden and Pence

U.S. President Joe Biden answers a question during a joint press conference with Prime Minister of the United Kingdom Rishi Sunak in the East Room at the White House on June 8, 2023 in Washington, DC.

Drew Angerer | Getty Images

Hillary Clinton, while she was secretary of State, kept an email server with classified information in some of the emails on a personal computer server at her home. After a lengthy investigation that dominated the 2016 presidential campaign, the FBI recommended to the Justice Department that it not press charges while saying Clinton and her colleagues “were extremely careless.”

Lawyers for President Joe Biden discovered 10 classified documents in November of last year at an office he used in downtown Washington. The attorneys immediately called the National Archives, which took possession of the documents the next day. A search of Biden’s home in Wilmington produced another six documents, which were also turned over immediately. Attorney General Merrick Garland has appointed a special counsel to look into how the documents got there, and the investigation is ongoing.

But it’s not just Democrats. Mike Pence, who was Trump’s vice president, searched his own home after the Biden documents were found and he discovered a dozen classified documents, which he immediately turned over to the National Archives. A voluntary FBI search of Pence’s home turned up another document with classification markings, for a total of 13. On June 1, the Justice Department informed Pence that it was closing his case, and no charges would be filed.

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So why is Trump being charged, while Pence and Clinton were not? Experts say the crucial difference is intent, namely what Trump allegedly did after he learned the National Archives wanted the classified documents he had back.

“I think if Donald Trump and his team had responded to the subpoena and turned over everything they had, we wouldn’t be here today,” said Jon Sale, a Miami lawyer who turned down an offer to join Trump’s legal team. “That’s why we’re here. That’s why this case was indicted.”

The boxes, the lawyer and the ex-president

The DOJ’s indictment includes photos of classified documents found at former President Donald Trump’s Mar-A-Lago residence.

Source: DOJ

By the spring of 2022, a year’s worth of effort by the National Archives to get Trump to turn over presidential records that did not belong to him had resulted in 15 boxes, with nearly 200 classified documents among them, being sent back to D.C.

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But photos from Mar-a-Lago show that Trump had brought more than 80 boxes of presidential records with him to Florida when he left the White House, meaning there were scores of records he still had not returned, which the Archives clearly knew about, including classified documents. Out of options, the Archives referred the missing classified documents to the Justice Department, which obtained a grand jury subpoena on May 11 for all remaining classified material held by Trump.

Right before lawyers arrived at Mar-a-Lago to retrieve the documents named in the subpoena, prosecutors have security footage of Trump’s valet and co-defendant, Walt Nauta, moving scores of boxes between Trump’s personal residence and a storage room. The lawyers were only allowed to search the storage room.

Sale, who leads the white collar defense practice at Nelson Mullins, said Trump could have made an argument to the Archives that he deserved to keep the documents he took.

“It they felt there was a legal reason not to turn something over, they could have provided privilege law, saying, ‘We think some of this is privileged and we’re not turning it over.’ Those are the options,” Sale said on MSNBC Tuesday. “There is not an option to say, ‘Let’s tell them we don’t have it.’”

Yet that is precisely what Trump allegedly asked his lawyer to do, according to notes taken the day of the search.

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Boiling it down

Former US President Bill Clinton, right, and Hillary Clinton, former US Secretary of State, during an interview for an episode of “The David Rubenstein Show: Peer-to-Peer Conversations” at the 92nd Street Y in New York, US, on Thursday, May 4, 2023.

Jeenah Moon | Bloomberg | Getty Images

Trump’s apparent intent to keep the records, while allegedly deceiving authorities about them and showing them to visitors, is what sets his case apart from Clinton, Pence and Biden.

“When you talk about President Biden and former Vice President Pence, what you’re talking about is complete transparency,” David Kelley, former U.S. Attorney for the Southern District of New York, said on PBS NewsHour this week.

“But when you go ahead and you’re told that you have got documents you’re not supposed to have, and then you conceal that, and then you lie about it, that’s a criminal problem, because that shows knowledge and intent to violate the law.”

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Instead of turning over everything, prosecutors allege that Trump spent more than a year deliberately hiding classified material from everyone and conspiring with Nauta to keep it hidden.

To this day, Trump insists the presidential records sought by the archives belong to him, and he does not deny that he refused to return them.

Instead, he claimed on Tuesday night, hours after he pleaded not guilty in the case, that the boxes containing classified documents actually contained “memorabilia,” and that he “hadn’t had a chance to go through all the boxes. It’s a long tedious job, it takes a long time.”

When FBI agents went through the boxes in August 2022, they found more than 100 classified documents that Trump and his lawyers had not returned. By the time FBI agents were finished searching Mar-a-Lago, the total number of classified documents Trump had taken from the White House, including those he previously returned, topped 300.

This amount of records, compared to the 13 records and 16 documents from Pence and Biden, respectively, is another major factor that set Trump’s situation apart.

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It also echoes one of the factors that then-FBI Director James Comey cited in 2016, when he explained what elements elevate a classified documents discovery to the level of a crime.

“All the cases prosecuted 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,” Comey said then.

“We do not see those things here,” he added, regarding the Clinton case.

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Live news: Hacker gets 5 years in prison over bitcoin ‘heist of the century’

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Live news: Hacker gets 5 years in prison over bitcoin ‘heist of the century’

A New York man has been sentenced to five years in prison after pleading guilty to a $4.5bn bitcoin theft dubbed the cryptocurrency “heist of the century”, US officials said on Thursday.

Court documents said Ilya Lichtenstein, 35, hacked into the Bitfinex crypto exchange in 2016, and made more than 2,000 transactions to transfer 119,754 bitcoins into his accounts. 

Justice officials said Lichtenstein used “sophisticated [money] laundering techniques”.

Lichtenstein and his wife, Heather Morgan, were arrested in February 2022. While the bitcoins were worth about $70mn at the time of the theft, they were valued at more than $4.5bn when the couple were arrested.

Morgan, who pleaded guilty in 2023, is due to be sentenced on Monday.

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Texas company, supervisor indicted in fatal 2021 trench collapse

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Texas company, supervisor indicted in  fatal 2021 trench collapse

A Texas grand jury has indicted a construction manager and his employer in connection with a trench collapse three years ago that killed a 24-year-old Bastrop worker and seriously injured another one.

Carlos Alejandro Guerrero, a project superintendent with Austin-based D Guerra Construction LLC, was charged with criminally negligent homicide in connection with the death of Juan José Galvan Batalla, according to the Travis County prosecutor’s office. The company was also charged. Galvan Batalla was working in a trench to install a residential sewer line near Austin in October 2021 when he was completely buried by falling soil and debris, officials said. He died of his injuries a week later.

In a news conference Thursday announcing the indictments, Travis County District Attorney José P. Garza cited an NPR investigation earlier this year (LINK: https://www.npr.org/2024/07/20/g-s1-9028/osha-construction-safety-trench-collapse), which found that 250 people died over the last decade when trenches they were working in collapsed. NPR compiled a database of trench collapse deaths that happened between 2013 and 2023 and found that only 11 employers were criminally charged in instances where workers died. Most offenders got off with a fine, probation or little time in jail.

“All workers here in Travis County deserve to be safe at work so they can return to their families at the end of the day,” Garza said. “When employers engage in criminal conduct and expose their employees to hazardous working conditions, this office will hold them accountable.”

Trench collapses often occur when employers cut corners, such as failing to install shoring equipment like hydraulic cylinders that hold back the dirt walls of a trench or boxes and timbers that prevent a potential collapse from harming workers.
An OSHA investigation found that two workers had escaped the unsafe trench just hours earlier, but were sent back into the 13-foot-deep hole to complete the job.

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“Despite a partial trench collapse earlier in the day, D Guerra Construction LLC recklessly sent employees back into the excavation without protective measures to prevent another cave-in,” OSHA Area Director Casey Perkins said in a statement. “The loss of this worker’s life was preventable and the employer must be held responsible for ignoring excavation safety rules.”

Scot Courtney, an attorney representing Guerrero, called the incident “a tragedy” and an “accident.”

“Nobody did anything intentionally,” Courtney said. “A jury will ultimately have to decide whether my client is a criminal for doing his job.”

In November 2023, two years after the cave-in killed Galvan Batalla, OSHA inspectors cited the company again for having an unprotected trench. Agency inspectors said the company’s workers were installing a sewer pipe inside a ten-foot-deep excavation in Pflugerville, Texas, that was not protected from cave-in hazards.

In a statement to NPR, the company said that Galvan Batalla was a valued employee and that several of his family members continue to still work there. The company declined to comment on the indictment.

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Genetic data is worth more than warm spit

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Genetic data is worth more than warm spit

Stay informed with free updates

A quarter of a century ago, Scott McNealy, then chief executive of Sun Microsystems, famously dismissed consumer privacy in the internet age as an anachronistic distraction. “You have zero privacy anyway,” he said. “Get over it.” Judging by the way in which consumers have since posted details of their private lives all over social media and breezily ticked the intrusive terms and conditions boxes of many online companies, McNealy may have had a point.

But how we act and what we think can be two different things. Internet users do not appear to have “got over it” when it comes to privacy. Indeed, consumers are now telling pollsters that they increasingly worry about the misuse of their personal data and want stricter controls. A Pew Research poll in the US last year found that 81 per cent of respondents were concerned about how companies collected their data; 71 per cent expressed similar concerns about the government (compared with 64 per cent in 2019).

Such anxieties are all the more acute when it comes to highly sensitive personal information, such as genetic data, which not only affects one individual but all their relatives, too. When you spit into a tube and send it off for DNA testing, you are handing over unique data that cannot be anonymised. You are also sharing information about all your biological family, most likely without their consent. That makes it all the more critical that such data is secure. 

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In some cases, there are glaring concerns about who can access — or sell — that data. Several users of the London-based DNA testing company Atlas Biomed have recently expressed alarm about the security of their personal information. The business appears to be inactive — it is late filing its annual accounts and has not been active online. It reportedly did not respond to recent enquiries from the BBC and there has been speculation about its links with Russian business interests.

The Information Commissioner’s Office, which enforces Britain’s data privacy laws, also confirmed that it received a complaint about the company.

In the US, customers of the 23andMe DNA-testing service are also anxiously following the fate of the company, which this week admitted there was “substantial doubt” over its survival without the injection of fresh funds. Some 15mn people have used the service and around 80 per cent of them have agreed to share their data for scientific research. 

Anne Wojcicki, 23andMe’s co-founder and chief executive, has said she intends to take the company private and will not consider a third-party takeover. “We are committed to protecting customer data and are consistently focused on maintaining the privacy of our customers. That will not change,” the company said in a statement to the FT.

But users are unlikely to be reassured. 23andMe’s genetic data is not covered by the US federal Health Insurance Portability and Accountability Act (HIPAA), which applies to most medical data. It also suffered a serious data breach last year in which 6.9mn user accounts were compromised. Wojcicki has fallen out with the rest of the board, who have resigned en masse. And it is not clear what would happen to 23andMe’s data if the company went bust.

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“23andMe highlights very valid anxieties and fears people feel when they have given highly sensitive information to a company for a specific purpose,” says Sara Geoghegan, senior counsel at the Electronic Privacy Information Center in Washington DC. “Users deserve more than a pinky promise that their privacy wishes will be respected.” For more than 20 years, Epic has been campaigning for a federal privacy law that would protect users’ rights.

Such legislation seems unlikely given the anti-regulation stance of the incoming Trump administration — even if many Republicans are themselves concerned about data privacy. The only real alternative is for consumers to assert their power by wresting more control. They must press tech companies to minimise the data they collect, become more transparent about its use and ensure that user consent is voluntary and informed. “Even with the best possible laws, it will not be possible to stop criminals or foreign governments hacking into your data,” says Carissa Véliz, author of Privacy is Power. “Tech solutions are very important.”

Some digital services already offer privacy by design but there is currently little market incentive for their expansion. Users should contest McNealy’s fatalism and stimulate that consumer demand.

john.thornhill@ft.com

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