In the debate over the Biden and Trump classified documents cases, the distinctions could be lost
As the judicial machinery heats up, Americans are left with the reality that the two potential opponents of the 2024 presidential election will both be investigated by special counsel as their campaigns get underway. to shape. And as Kinzinger so aptly pointed out, the legal differences may be lost for now in the political debate that will follow.
The Biden affair unfolded quickly — at least in the public arena. It is now known that classified documents have been discovered in the offices of the Penn Biden Center for Diplomacy and Global Engagement, a Washington think tank; in the garage of Biden’s residence in Wilmington, Del.; and at another location in Wilmington House.
The first batch was discovered on November 2, six days before the midterm elections. Those from the Biden garage were found on Dec. 20. The president’s lawyers revealed on Thursday that another document had just been found in a room next to the garage of Biden’s Wilmington home. Biden said the garage, where his Corvette is stored, is locked.
Hours after this latest revelation, Attorney General Merrick Garland announced that he was appointing Robert K. Hur, a former senior Justice Department official and U.S. attorney from Maryland, as special counsel to investigate the case. Garland apparently had no choice but to appoint special counsel, even if the facts turn out to be different from the investigation into the Trump documents.
The legal differences are potentially significant, though much less is known about the Biden case. What is known is that Trump had hundreds of classified documents at Mar-a-Lago, some of them top classified. Biden had far fewer — about 10 at the Biden Penn Center office and a few more in Delaware. Biden said he was “surprised” to learn the documents were in his possession, adding that he takes classified documents seriously. He also said that he had not asked about the contents of the documents found.
Another difference is that one of Biden’s personal attorneys discovered the documents and called the White House attorney. The documents were voluntarily turned over to the National Archives and Records Administration. Some of what was found was marked top secret. On November 4, the Inspector General of the National Archives contacted the Department of Justice to alert officials to what had happened.
Ten days later, Garland asked John Lausch, the Chicago U.S. attorney and a Trump appointee, to conduct a preliminary investigation, which led to Hur’s appointment on Thursday. The Biden White House said he and his lawyers have worked with the National Archives and the Justice Department and will continue to do so.
By contrast, National Archives officials have repeatedly requested and been denied the return of Trump documents, leading to an FBI raid on Mar-a-Lago last summer. Even after Trump’s lawyers told the administration there were no classified documents left at the former president’s residence, more were discovered. One of the questions raised by the Justice Department’s investigation into Trump’s documents is whether he or others have obstructed justice.
Biden’s team has questions to answer, both to Hur’s team and the public. So far, the president and his team have not been entirely obliging. The classified documents were discovered before the midterm elections, but no one on Biden’s team said anything public at the time, though Biden used the investigation of Trump’s documents as a political talking point during the fall campaign, calling Trump’s possession of classified documents “irresponsible.”
The rules for handling highly classified documents are clear. They should never be moved from secure facilities. A quick pre-election disclosure would have been embarrassing, to say the least, and potentially politically damaging to Democrats.
When CBS News reported last week that documents had been found at the Penn Biden Center, White House officials confirmed that story but did not disclose that other documents had been found at Biden’s residence, though this has been known for weeks. On Saturday, Richard Sauber, the president’s special adviser, revealed that he had found five additional documents in Biden’s home when he went there to review the previously found document.
These are other examples of a lack of transparency, although the White House may have felt it should not reveal the facts about a Justice Department investigation. When the first story broke last week, Garland had received a recommendation from Lausch to appoint special counsel.
Hur and his team have a lot to deal with in the investigation. The history of such investigations suggests that it will take several months to complete the investigation and make decisions about whether or not to charge someone. Some Biden defenders question the need for special counsel in the absence of evidence of a crime. But the politics of the case left Garland with no choice but to assign the case to a special attorney.
Another factor in all of this is that Justice Department policy states that a sitting president cannot be prosecuted criminally. That could be a former president.
Trump and his allies seized on the fact that Biden had documents in his possession after he left the vice presidency to suggest that the two cases are equivalent and that indicting Trump but not Biden would be a miscarriage of justice.
Garland has been accused of double standards, launching a high-profile raid on the former president in the middle of an election year without mentioning the Biden documents before the election or until they were reported in the media. Trump will use Biden’s possession of classified material as leverage to evade potential charges.
Trump has accused Jack Smith, the special counsel overseeing investigations into Trump’s possession of classified documents and his role in the January 6, 2021, attack on the Capitol, with personal bias and wants him fired. It has intensified these attacks in recent days.
Meanwhile, some conservatives question Hur’s impartiality, as he was implicated in court overseeing Robert S. Mueller III’s investigation into Russian meddling in the US election. 2016 and the possible collusion with the Trump campaign. Mueller’s investigation showed several contacts between Trump officials and Russians, but found no criminal conspiracy.
The revelations about Biden’s possession of classified documents are a political giveaway for House Republicans, who spent the first week of the year bickering among themselves over the selection of Rep. Kevin McCarthy (R-Calif.) as Speaker of the House in a display of chaos unlike any presidential election in more than a century.
House Republicans were already planning investigations into the Biden administration and Biden’s son, Hunter. Now they have a new target. The Republicans have the potential to overplay their hand, but for now they have a pass to put Biden on the defensive — and distract from their own messy conference.
Rep. Michael R. Turner (R-Ohio), who chairs the House Intelligence Committee, has requested a secret briefing on the matter by the end of the month. The same goes for Senator Mark R. Warner (D-Va.), chairman of the Senate Intelligence Committee.
Rep. James Comer (R-Ky.), chairman of the Oversight and Reform Committee, went further by requesting all relevant documents and communications related to the documents from the White House before Jan. 24. On Friday, Rep. Jim Jordan (R-Ky.)-Ohio, chairman of the House Judiciary Committee, and Representative Mike Johnson (R-La.) sent Garland a letter requesting documents and communications from the executive, declaring their determination to conduct an investigation.
At the Biden White House, where officials hope to use the coming year to bring increasing attention to the positive effects from the bipartisan infrastructure bill, the bipartisan chip bill, and the prodigious spending on climate initiatives approved in a partisan vote last summer, the series of documents is an unexpected setback – a clear distraction for which no outside adversary can be blamed.
Garland tried to assure that the investigations, into Trump and now Biden, will be conducted by the book, that indictment decisions will be based on the facts and the law. For Trump lawyers, only the fact that classified documents from the former vice president, now president, made it to a think tank and Biden’s personal home is all that matters. Which, regardless of what Garland says about investigative fidelity, greatly complicates the work of the two special advocates.
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