FBI agents are rummaging through President Joe Biden’s private home. The Republicans are on the attack. Democrats are reluctant to defend him. Lawyers are being hired. Witnesses are being interviewed. The press secretary is being hounded with questions she can’t or won’t answer.
But amid the familiar soundtrack of scandal in Washington, the most significant cost to the president may be the opportunity cost: even if the special counsel’s new investigation into his team’s mishandling of classified documents doesn’t result in nothing, politically he has allowed the former President Donald Trump cleared of guilt for hoarding secret documents.
The cases are markedly different in their particularities, as has been repeatedly pointed out. Biden has cooperated with authorities, inviting them to search her home, while Trump defied efforts to recover documents even after being subpoenaed, prompting a judge to issue a search warrant. But they are similar enough that, in practice, Democrats can no longer use the issue against Trump politically, and investigators may have a harder time prosecuting him criminally.
“I think it is likely that when the investigation is over, the Biden case will end up being one of inadvertent errors: carelessness but not willful defiance of the rules or the law,” said David Axelrod, a former senior adviser to President Barack Obama. “Trump’s case is very different and more serious. But in the court of public opinion, those lines may now be blurred.”
They will be even more confusing if additional revelations from the Biden case produce more damaging information. Democratic allies are increasingly frustrated by a White House that hid the discovery of secret documents from the public for two months and, even once reported, provided only partial information, then declared the search over, only for them to turn up. more documents.
United States Attorney General Merrick Garland speaks during a press conference at the Justice Department in Washington on Jan. 12, 2023. (Tom Brenner/The New York Times)
The public perception that everyone is doing it will only be fueled by the latest discovery of classified documents at the Indiana home of former Vice President Mike Pence. Pence asked a lawyer to review the files out of an abundance of caution, CNN he reported Tuesday, and once the papers were found, he quickly turned them over to authorities.
No one has been happier with the developments than Trump, who has unsurprisingly used them to divert attention from his own mishandling of the documents and accuse Democrats and the government of attacking him out of partisan animosity. In a fundraising request Tuesday, he told his supporters that he was “being hunted” by a “Trump-deranged” special prosecutor, while Biden “is being treated with a white glove.”
“Biden lied to the American people and weaponized the Department of Justice, or as I call it, the Department of Injustice, to go after me for the very crime that he actually committed,” Trump said in a video. “The difference is that while I did everything right, I did nothing wrong, Biden did everything wrong.”
At the same time, Republicans who have been uncomfortable with questions about the former president have been quick to suggest an equivalence, or even to say that Biden’s conduct was worse than Trump’s.
“They are very similar, and yet there are some differences,” Rep. Nancy Mace, RS.C., said on NBC’s “Meet the Press” Sunday. “They are similar in that they both mistakenly took classified information from the National Archives” and from the secure facilities, she said. But the difference is that since Biden left office six years ago, “these documents were hidden; no one knew about them.”
A new poll indicated that the majority of Americans think that both Trump and Biden did something wrong. Seventy-seven percent of those polled by ABC News and Ipsos said Trump acted inappropriately when handling classified documents, while 64% said Biden did.
Many Americans draw a distinction on the degree of wrongdoing: 43% said Trump’s conduct was a “more serious concern” compared to 20% who said Biden’s was more serious. But 30% found them just as serious.
Attorney General Merrick Garland has appointed independent special counsel to investigate the Trump and Biden cases, in an effort to insulate them from each other and, in theory, at least, from politics. But the very act of appointing a special advocate for each suggests a certain parallel in terms of public messaging.
Also, at the end of the day, Garland will still make the final call on what to do with both cases, inviting attacks of double standards if he issued charges in one case and not the other. That gets even more complicated since Justice Department policy established under previous administrations holds that a sitting president cannot be impeached even if there is evidence of criminal wrongdoing.
Garland, a former federal appeals judge who came to his current position with a bipartisan reputation for independence and rectitude, now finds himself insisting to skeptics that he can impartially oversee both investigations, even if one involves his boss and the other the public. man who opposes the boss of him in the presidential election next year.
“The role of the Department of Justice is to apply the facts and the law and make the appropriate decisions in a neutral and nonpartisan manner,” he told reporters this week. “That’s what we’ve done in each of these cases.”
That, at least, is what Biden’s lawyers hope. The crux of his 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 tried to work collaboratively to find other missing documents.
Attorney General Merrick Garland has appointed special counsel to investigate the presence of documents with classified marks found at President Joe Biden’s home in Wilmington, Delaware, and at an office in Washington.@AP Explain. pic.twitter.com/gzRDUzbJ3C
— The Associated Press (@AP) January 13, 2023
That cost them in the public sphere because they concluded that it would be to their advantage not to publicly disclose the findings so as not to antagonize Justice Department officials reviewing the situation and ultimately persuade them that the incident was not more that a mistake in good faith. As far as is known, the president’s lawyers, unlike Trump’s team, have not resisted any requests from investigators or attacked the prosecutors in charge.
In terms of legal adjudication, the fact that Biden is now defending himself over his handling of documents theoretically bears no direct bearing on whether Trump should be impeached 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, though he said he believed his department could have handled them fairly.
Andrew Weissmann, who was a top deputy to special counsel Robert Mueller during the investigation into Russian interference in the 2016 campaign on Trump’s behalf, said public perception should not affect whether a case should be brought against the former president.
“Making relevant factual distinctions is a core function at DOJ,” he said. “But there is no denying its relevance as a political issue. Public acceptance of the legitimacy of bringing the first criminal case against a former US president is going to be critical.”
Stanley Brand, a prominent Washington lawyer who previously served as House general counsel, said Trump’s legal team could try to challenge a prosecution alleging political bias.
“There is also the issue of selective prosecution: treating similar cases differently based on a suspicious classification or criteria,” Brand said. Referring to Garland, he added: “I would argue that, as the President’s appointee, he has a conflict, a conflict that cannot be resolved by the appointment of special counsel, since, under Department of Justice regulation, he retains responsibility final”.
That doesn’t mean a judge would agree with Trump’s argument. “Even if such claims do not ultimately prevail in court,” Brand said, “they complicate the AG’s decision, and it would have to weigh the likelihood of lengthy and complicated pretrial litigation of such claims.”
For the moment, however, it is the court of public opinion in which the cases are being fought, and Republicans and Democrats agree that Trump has taken a breather. After all the furor over Trump’s blatant reluctance to return the documents, and his insistence that he could declassify them simply by thinking about it, the spotlight has turned to Biden.
Former President Donald Trump speaks at a rally in Dayton, Ohio, on Nov. 7, 2022. (Maddie McGarvey/The New York Times)
It is no longer a straightforward story of a former president who appears to have intentionally taken hundreds of documents that were not his, whether they were declassified or not, and then refused for over a year to return them all, even under orders from a judge. . Instead, it is one more chapter in the whataboutism that Trump and his allies have used time and time again to justify or defend his actions.
Tim Miller, a longtime Republican strategist who became a prominent critic of the former president, said there was a “stark contrast” between how Trump handled the classified documents issue and how Biden did.
But as a political issue, he said, the case plays into Trump’s hands.
“Trump has a championship-level ability to muddy the waters,” Miller said, “and create false equivalences between his own wrongful behavior and other people’s more mundane mistakes.”
