With a Democratic president in the legal crosshairs, an outrageous prosecutorial double standard is about to make a comeback.
‘H ow that could possibly happen, how one — anyone could be that irresponsible.” That was just the beginning of Joe Biden’s bristling condemnation of his predecessor, Donald Trump. When he learned of the former president’s hoarding of classified documents at his Mar-a-Lago estate, Biden told 60 Minutes that he became deeply worried that there could be “data” in these highly secret intelligence files “that may compromise sources and methods. By that, I mean, names of people helped or et cetera.”
In this, he sounded like his old self — which is to say, like Senator Joe Biden circa 1977, who tanked President Jimmy Carter’s nomination of Ted Sorensen to be CIA director. Sorensen had mishandled classified documents, retaining them in his home without authorization. How could we expect to hold intelligence agencies accountable, Senator Biden wondered aloud, if the boss wasn’t held accountable?
On the one hand, if hypocrisy were a crime, there’d be no one left to run Washington. On the other, if consistency were a Beltway virtue, articles of impeachment against President Biden would already have been drawn up. Democrats were so monomaniacally determined to hang the scarlet “I” on Trump that they impeached him, in a strictly partisan exercise, over his threat to withhold aid to Ukraine in order to pressure Kyiv to investigate Biden-family corruption — notwithstanding that Trump’s icky behavior was not a crime, that Ukraine ultimately got the aid (which was significantly better than the aid it had gotten from the Obama–Biden administration), and that there was indeed Biden-family corruption in connection with the Ukrainian regime (among other corrupt and/or anti-American regimes).
By contrast, in connection with his own classified-documents scandal, President Biden has actually committed crimes. And those crimes are enshrined in federal law precisely because of the potential they carry to do catastrophic damage to national security — the protection of which is the president’s principal responsibility.
Some of the classified documents Biden was hoarding were reportedly designated “TS/SCI” — meaning top-secret and sensitive compartmented information. As I explained last week (citing the relevant federal rules), intelligence is branded top-secret “only if its unauthorized disclosure ‘reasonably could be expected to cause exceptionally grave damage to national security.’” SCI, moreover, is the designation applied when “the information at issue could compromise deep-cover intelligence sources and/or highly sensitive methods of gathering intelligence that the government needs to keep under wraps.” You know: exactly the sort of danger that had Biden feigning outrage on 60 Minutes when invited to comment on Trump’s unlawful retention of intelligence.
Ironically, although this makes Biden a hypocrite, it doesn’t make him wrong. Indeed, when we look back at all the whoppers spouted by Biden and his flacks since CBS broke the news that launched his metastasizing scandal two weeks ago — Biden “takes classified information seriously,” Biden “self-reported” his transgressions, the Biden administration is completely “transparent,” etc. — we will probably remember Biden’s remarks about Trump as the only true statement he has made on the subject of classified information.
It’s just that those observations apply every bit as much to Biden himself.
Notice: Biden stressed that Trump had been utterly “irresponsible.” That’s not off-the-cuff. The president was clearly prepped on what to say about his rival, whom his administration then had every intention of indicting for mishandling national-defense information, a felony punishable by up to ten years’ imprisonment per count. No one who had watched the methodical way in which the Justice Department was building the case could doubt that it was no longer a matter of if Trump would be charged, but when.
The Democrats’ emphasis on Trump’s irresponsibility was rooted in the Espionage Act, the violation of which was to be the main charge against Trump. The search warrant the Biden Justice Department sought for Mar-a-Lago in August was explicitly aimed at finding evidence of that violation.
Under the germane Espionage Act subsection (codified in Section 793(f) of the federal penal code), an official who has had trusted access to sensitive intelligence need not be shown to have intentionally violated the law. Because such officials are schooled in the handling of national secrets, and because their access to such intelligence is conditioned on their solemn agreement to handle it in accordance with demanding security requirements, they can be convicted if they exhibited “gross negligence” in, for example, removing such intelligence from its safe government repository, retaining it in an unauthorized place, or causing it to be exposed to people who are not authorized to possess it.
Now, of course, the worm has turned. And for this Democratic administration, as for the last Democratic administration — the one in which Biden served as vice president and was, shall we say, irresponsible in handling classified information — that means a return to Comey/Hillary Rules.
In other words: The Biden DOJ’s prosecutors will not apply the law as it is written — as they fully intended to apply it to Trump, before Biden’s own classified-information scandal erupted.
I’m sure you recall former FBI director Jim Comey’s legally wayward insistence that “no reasonable prosecutor” would apply the Espionage Act to Hillary Clinton as if it meant what it plainly says. When a top Democrat is in the crosshairs — as opposed to, say, Trump, other Republicans, low-level Defense Department employees, CIA contractors, military personnel, and other lesser mortals — being a “reasonable prosecutor” means you must add elements of proof that don’t appear in the criminal law. Under the Comey/Hillary rules, concocted to spare former secretary of state Clinton from prosecution for the gross negligence of her homebrew-server scheme, the Justice Department must not prosecute classified-intelligence mishandling unless it is intentional.
Of course, that’s not what the law says. The law as written requires only gross negligence. It recognizes that the commitment to safeguard national-defense intelligence consistent with the rules is the condition upon which government officials are given privileged access to that intelligence in the first place. With the privilege, the law says, comes an obligation of high care.
You can claim that’s not reasonable, as the media–Democrat complex does when a Democrat violates the law. But if I may, that’s a grossly negligent way to read the statute.