Biden’s handling of classified documents complicates the case against Trump

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President Joe Biden arrives at the White House in Washington on Monday, January 23, 2023. (Doug Mills/The New York Times)

WASHINGTON — FBI agents are rummaging through President Joe Biden’s private residence. Republicans are on the attack. Democrats are hesitant to defend him. Lawyers are hired. Witnesses are being questioned. The press secretary is bombarded with questions she is unable or unwilling to answer.

But amid the well-known soundtrack to the Washington scandal, perhaps the most important cost to the president is the opportunity cost: Even if nothing comes of the new special counsel’s investigation into his team’s mishandling of classified documents, politically it has former President Donald Trump in fact letting it off the hook for hoarding classified papers.

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As has been pointed out repeatedly, the cases vary considerably in their specifics. Biden has cooperated with authorities, inviting them to search his home, while Trump defied attempts to recover documents even after being subpoenaed, prompting a judge to issue a search warrant. But they are similar enough that Democrats can no longer use the issue politically against Trump in practice, and investigators may have a harder time prosecuting him criminally.

“I think it is likely that when the investigation is complete, the Biden case will end up as one of the unintentional mistakes — carelessness but not intentional violation of rules or the law,” said David Axelrod, a former senior adviser to the president Barack Obama. “The Trump case is very different and more serious. But in the court of public opinion, those lines may now blur.

They will become even more vague as additional trickle-drop-drop revelations from Biden’s case yield more damaging information. Democratic allies are growing increasingly frustrated with a White House that hid the discovery of classified documents from the public for two months and, even once reported, provided only partial information, then declared the search complete, then released more documents. to pop up.

The public perception that everyone is doing it is only fueled by the latest discovery of classified documents in former Vice President Mike Pence’s Indiana home. Pence asked a lawyer to review files as a precaution, TUSEN reported Tuesday, and once the papers were found, he immediately turned them over to authorities.

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No one has been happier with the developments than Trump, who has predictably used them to divert attention from his own mishandling of documents and accuse the Democrats and administration of prosecuting him out of partisan animus.

“They created this Documents mess for themselves by being so CRAZY about me, and I did NOTHING WRONG!!!” he wrote on his social media website this weekend.

And Republicans uncomfortable with questions about the former president rushed to suggest an equivalence — or even argue that Biden’s behavior was worse than Trump’s.

“They are very similar, and yet there are some differences,” said Rep. Nancy Mace, RS.C., on “Meet the Press” on NBC on Sunday. “They are similar in that they both falsely extracted classified information from the National Archives” and secured facilities, she said. But the difference is that since Biden left office six years ago, “these documents were hidden; nobody knew about them.”

A new poll found that most Americans think both Trump and Biden have done something wrong. Seventy-seven percent of those polled by TUSEN News and Ipsos said Trump acted improperly when handling classified documents, while 64% said Biden did.

Many Americans do discriminate by degree of misconduct: 43% said Trump’s behavior was a “more serious problem” compared to 20% who said Biden’s was more serious. But 30% thought they were just as serious.

Attorney General Merrick Garland has appointed separate special counsel to investigate the Trump and Biden cases, attempting to isolate them from each other and, in theory, at least from politics. But the mere appointment of special counsel for each suggests a certain parallel in terms of public coverage.

Plus, at the end of the day, Garland will still make the final decision on what to do with both cases, inviting strikes for a double standard if he were to press charges in one instance and not in the other. That becomes even more complicated because Justice Department policies established under previous administrations mean that a sitting president cannot be charged even if there is evidence of criminal misconduct.

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Garland, a former federal appeals judge who came to his current post with a dual record of independence and probity, is now urging skeptics that he can oversee both investigations equally, even though one involves his boss and the other the man who opposes it. his boss in next year’s presidential election.

“The role of the Justice Department is to apply the facts and the law and make appropriate decisions in an impartial and neutral manner,” he told reporters this week. “That’s what we did in each of these cases.”

At least that’s what Biden’s lawyers hope. The core of their legal strategy is to make it clear that they are doing the opposite of what Trump’s lawyers did. They immediately contacted authorities after the documents were found and have been trying to work together to find other stray papers.

That cost them in the public sphere because they concluded that it would be more beneficial not to make the discoveries public so as not to antagonize Justice Department officials who are investigating the situation and ultimately dissuade them. convincing that the incident was nothing more than a good faith mistake. As far as is known, unlike Trump’s team, the president’s lawyers have not resisted any requests from investigators or attacked prosecutors.

In terms of the legal assessment, the fact that Biden is now defending himself over his handling of documents in theory has no direct bearing on whether Trump should be charged for his actions. In reality, however, prosecutors are sensitive to public perception. In fact, that concern is why Garland appointed special counsel to handle each of these investigations, even though he said he believed his department could have managed them fairly.

Andrew Weissmann, who was a top deputy for special counsel Robert Mueller during the investigation into Russian interference in Trump’s 2016 campaign, said public perception should not influence whether a case should be brought against the former president.

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“Drawing relevant factual distinctions is a core function at DOJ,” he said. “But there is no denying that it is a political issue. Public acceptance of the legitimacy of bringing the first-ever criminal case against a former US president will be critical.”

Stanley Brand, a prominent Washington attorney who previously served as general counsel to the House of Representatives, said Trump’s legal team could try to challenge a prosecution by claiming political bias.

“There’s also the issue of selective prosecution: treating similar cases differently based on suspicious classification or criteria,” Brand said. Referring to Garland, he added, “I would argue that as the President’s appointee he is conflicted — a conflict that cannot be resolved by the appointment of a special counsel, as he retains ultimate responsibility under DOJ regulation. “

That doesn’t mean a judge would agree with Trump’s argument. “Even if such claims ultimately do not prevail in court,” said Brand, “they will complicate the AG’s decision, and he should weigh the likelihood of lengthy and complicated litigation over such claims.”

At the moment, however, it is the court of public opinion in which the cases are being conducted, and Republicans and Democrats agree that Trump has taken a break. After all the furore that came from Trump’s brazen resistance to handing over documents — and his insistence that he could release them simply by thinking about them — attention has turned to Biden.

It is no longer a simple story of a former president who appears to have deliberately taken documents that did not belong to him, then refused to return them all for over a year, even under a judge’s order. Instead, it’s another chapter in whataboutism that Trump and his allies have used time and again to justify or defend his actions.

Tim Miller, a longtime Republican strategist who became a leading critic of the former president, said there was a “stark contrast” between how Trump handled the issue of classified documents and how Biden did.

But as a political issue, he said, the case plays into Trump’s hands.

“Trump has the championship-level ability to muddy the waters,” Miller said, “creating false equivalences between his own illicit behavior and other people’s more mundane mistakes.”

© 2023 The New York Times Company

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