The Biden administration had the perfect way to get rid of Trump. The former president appeared to have stonewalled the Department of Justice from obtaining classified documents containing national-security material. An obstruction charge looked to be a relatively simple prosecution, especially before a Washington, D.C., jury.
But that’s all in jeopardy with the revelation that Joe Biden himself had three secret troves of classified documents on national-security material: one in a locked closet at a foreign policy think tank, the Center for Diplomacy and Global Engagement, aka the Penn Biden Center; another in his Wilmington, Delaware, home’s garage — alongside his Corvette; and a third in a room adjacent to his garage.
It’s impossible for the investigation into Donald Trump to be insulated from politics. A special counsel, Jack Smith, has been assigned to oversee the investigation into Trump’s handling of the material and alleged obstruction of the DOJ’s investigation, thus lending some appearance of political neutrality. But Smith reports to Attorney General Merrick Garland, who of course reports to Biden.
When it really comes down to it, Garland has the power to charge or not charge Trump.
Here’s the problem for the Biden administration: A prosecution of a former president has to be sold politically. You can’t charge a president on a basis that a huge swath of the population can’t get behind. If you did, all you’d accomplish by such a prosecution would be tarnishing the Justice Department’s reputation.
In the mind of the public, both cases are about illegally retaining classified documents. Upon leaving office, two former elected officials illegally stored classified documents, some of which were classified at the SCI, or sensitive compartmented information, level. In the case of Biden, CNN has reported that he had in his possession “intelligence memos and briefing materials that covered topics including Ukraine, Iran and the United Kingdom.” In Trump’s case, the Washington Post has reported on the basis of anonymous sources that the documents included “highly sensitive intelligence regarding Iran and China.”
Since the sitting president allegedly has committed a related crime, it would be exceedingly difficult to establish the support for charges that you’d need from the American people to prosecute Trump without blowing your reputation. Such a prosecution would come across as hypocritical, unfair, and partisan.
Yes, Trump was served a subpoena in May 2021 asking for “any and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings” and maintained such documents in his possession until they were seized by the FBI while Biden’s lawyers voluntarily handed over the classified documents. Trump, therefore, could be charged with a separate crime.
But the argument that “both Trump and Biden illegally stored classified material, yet only Trump is being charged” would haunt any prosecution of Trump, no matter how good of a public relations campaign the DOJ and the media waged to convince Americans that Trump’s case is different. The Biden administration may come to the conclusion that a prosecution on obstruction charges is no longer politically feasible.
The liberal media is reluctantly facing this possibility.
An article in CNN Thursday is headlined “Biden’s document scandal eats away at efforts to hold Republicans accountable.”
“President Joe Biden’s embarrassment over classified documents found in his former offices is spiraling into a major political crisis that threatens to undermine the case for Donald Trump to be charged for his own hoarding of secret material,” it said.
“Garland and Smith may well think even harder before charging Trump,” concluded a Vox article comparing both cases.
The Associated Press quoted Jay Town, a U.S. attorney during the Trump administration, who said, “To the extent that the political narrative is a consideration … it does make it harder to bring charges against former President Trump as it relates to the documents seized at Mar-a-Lago.”
For its part, the media is working to convince the public that the two cases are distinct. It’s an effort that will need to widely succeed if the Biden administration wants to prosecute Trump for obstruction and sell it politically.
The Biden administration has an alternative if it doesn’t want to make the now politically uncomfortable move of charging Trump on the basis of his handling of classified documents: It can just charge him with something else.
Smith is also working his way through investigating Trump’s actions leading up to Jan. 6. According to the New York Times, Smith has issued subpoenas that suggest he is looking into whether claims of a stolen election were used to raise money, who covered legal expenses for Trump’s associates, and whether money passed to people “who were not disclosed.”
Charging Trump for something that Biden didn’t do would at least be less awkward.
There’s another solution, though. The Department of Justice could charge both Biden and Trump for their handling of classified documents. That would silence accusations of partisanship.