Biden’s Mishandling of Classified Information Complicates Politics of DOJ’s Trump Probes

Indicting Trump just became more politically difficult for the DOJ — but the former president isn’t out of the woods yet.

‘D on’t underestimate Joe’s ability to f*** things up.” That notorious assessment by former president Barack Obama of his vice president’s proclivities is undoubtedly getting a workout at the Biden Justice Department these days.

It turns out that around Thanksgiving, President Biden’s lawyers were constrained to report that he had mishandled classified documents, not only transporting them to but also maintaining them in an unauthorized location. This raises the specter of criminal violations of the federal laws governing the protection of secret government intelligence.

And it’s a double whammy. The unauthorized place where the classified documents were found is none other than the Biden Center for Diplomacy and Global Engagement at the University of Pennsylvania. This is not just any portentous-sounding monument-to-self erected as a sort of longevity-in-government award for a career mediocrity. It is a facility the Ivy League school established only after raking in a whopping $54.6 million in donations from China. That funding bonanza started in 2014, when Biden was Obama’s veep, and when his bagman son, Hunter, was ensconced in megabucks business with pillars of the communist regime — relationships cemented in Beijing when Hunter hitched a ride on Air Force Two with Pop, who was ostensibly there to steer the Obama administration’s China policy. At the time, Xi Jinping’s regime somehow happened to see the good sense in paying the Biden family gobs of money through the ne’er-do-well Hunter, who had just been quietly booted from the U.S. Navy over his cocaine addiction.

Let’s be clear: Despite Donald Trump’s inevitable inability to contain his glee over the good fortune this Biden misadventure represents for him, what Biden appears to have done — based on the little we know at this early stage — pales in comparison to Trump’s classified-information transgressions.

Biden seems to have self-reported the unauthorized retention of about ten documents with classified markings on them (at this point, we have no idea how sensitive they are), and he is said to be cooperating completely with the government officials who are looking into the matter. By contrast, Trump willfully retained hundreds of classified documents (some at the highest security levels, meaning their falling into the wrong hands could be catastrophic); he fought government efforts to retrieve those documents for over a year and a half; and he not only flouted a grand-jury investigation into the matter but caused his representative to make a sworn statement to the grand jury falsely representing that a package presented to the FBI in June 2022 contained all documents bearing classification markings that had been located in his Mar-a-Lago estate after a painstaking search. Nor is that all. Trump is not just suspected, even after the August Mar-a-Lago search warrant, of continuing to hoard — or of having carelessly lost — classified intelligence; he is known to have held onto classified intelligence after the August search: His lawyers reported finding more documents in November.

That said, the challenge of prosecuting Trump in this matter has never been legal. I’ve intuited that the Justice Department is confident it already has a slam-dunk case and is just waiting for the right to time to launch — i.e., that the prosecution is a matter of when, not if. No, the challenge here for the DOJ is political.

Long before the latest Biden revelation, Trump’s best shot at not being charged was the Hillary Clinton precedent. Clinton’s misconduct was far more comparable to Trump’s than Biden’s appears to be. As secretary of state, she willfully — and against regulations that not only applied to her but that she was enforcing against others — set up a home-brew email-server system in order to defeat government record-keeping requirements (which would otherwise have shown, for example, how much intermingling there was between State Department and Clinton Foundation business). Because dealing with sensitive foreign-relations, military, and national-security matters made up the lion’s share of her job, it was inevitable that classified information and discussions alluding to defense matters were going to be transmitted over and stored on her nonsecure system. And the scheme went on for years, even implicating President Obama in reckless communications of highly sensitive matters via the unprotected facilities. The FBI internally acknowledged that Clinton’s home-brew system could easily have been, and likely was, penetrated by hostile foreign intelligence services.

When the scheme was discovered, Clinton intentionally destroyed tens of thousands of emails, even though she knew full well that they were pertinent to investigations (including Congress’s Benghazi probe) and contained government records (not merely, as she ludicrously claimed, yoga routines and correspondence about Chelsea Clinton’s wedding) that federal law required her to preserve. (It is worth noting here that the Justice Department is contemplating charging Trump with exactly the kind of misconduct on which Clinton got a pass: the unlawful retention of government records, regardless of whether they were classified.)

Clinton was not accused of impeding a grand-jury investigation, but that is only because, under circumstances in which Obama let it be known that he did not want Clinton charged, the Obama–Biden Justice Department colluded with Clinton’s lawyers to limit the FBI’s access to key evidence. The fix was in: The FBI’s top brass began writing up a statement recommending against charges months before the non-prosecution decision was formally made. Even Clinton’s preposterous statements in her perfunctory FBI interview — at which the FBI allowed her accomplices to sit in as her lawyers — were not going to change the administration’s determination not to indict. In order to reach that determination, moreover, the Obama–Biden Justice Department and the FBI effectively rewrote the Espionage Act to require proof of an intent to harm the United States, when the plain text of the statute allows government officials to be prosecuted for gross negligence even absent any such intent.

Because Clinton was not prosecuted, the Justice Department has had only the thinnest margin of error in the Mar-a-Lago investigation. Biden wants to be reelected in 2024. He knows that among the issues most apt to damage him in the 2024 campaign is the partisan weaponization of federal law enforcement — the perception that, for roughly similar conduct, Democrats are given a pass while Republicans have the book thrown at them. That is why his attorney general, Merrick Garland, appointed a special counsel to handle the DOJ’s investigations of Trump; the administration wants to put as much distance as it can between the president and any decision to charge the former president who is running against him.

To be sure, the Democrat-media complex trades in emotion, not logic. Democrats are rabid in their desire for Trump to be indicted; it wouldn’t bother them in the slightest if Trump were prosecuted despite the Clinton precedent. They know, furthermore, that the press would support such a prosecution. Nevertheless, while Biden needs to keep his base animated, he has to weigh that need against the political risks involved in charging Trump. An indictment of Trump for mishandling classified information can only be justified to the public — including Republicans and independents — if Trump’s misconduct appears to be so much worse than what Democrats have gotten away with that prosecutors cannot turn a blind eye.

The Clinton precedent makes that a high bar to clear. It is why there has been such an emphasis on such matters as Trump’s allegedly obstructing and lying to the grand jury, the sheer girth of classified material physically seized from Trump (which certainly looks worse than the files Hillary BleachBitted out of existence), and the continuing nature of the crime — the fact that documents are still missing. By highlighting these aspects of Trump’s case, Democrats and their amen chorus seek to frame his conduct as uniquely awful and thus meriting indictment despite the get-out-of-jail-free card afforded Clinton.

Now, however, we add into the mix Biden’s seeming commission of the same generic offense for which Trump is under investigation — different in degree of seriousness, sure, but not really different in kind. With a thin margin of error, this is not the sort of thing Biden’s prosecutors can afford.

Already, the two-tiered justice system established under Democratic governance has reared its head. The Biden Justice Department has appointed a special counsel to investigate Trump even though there is no real conflict of interest. Yet there is a blatant conflict of interest in President Biden’s Justice Department subordinates’ investigating Biden himself, and Garland has not appointed a special counsel to avoid that conflict — just as he has not appointed one for the ongoing probe of foreign money pouring into the Biden family’s coffers (which, to obfuscate the president’s complicity, is referred to as the “Hunter Biden investigation”). In addition, while Biden has drawn plaudits for self-reporting his violation, when Trump self-reported finding additional documents, the Biden Justice Department asked a judge to hold him in contempt.

Now, to all this must be added the assurance that, if Trump is charged, any failure to charge Biden will become a 2024 campaign issue — and even though Justice Department guidance does not permit indictment of a sitting president, Republican candidates will be pressured by the pro-Trump faction of the GOP base to commit to charging Biden.

Perhaps even more damaging for Biden, the location in which he was unlawfully retaining classified documents will call more unwanted attention to the millions of dollars his family hauled in from Chinese-regime operatives. Indeed, the classified-information revelation comes at the very moment when the new Republican majority in the House is standing up what promises to be an aggressive investigation of that scandal (working on a foundation already laid in reports compiled by Republican senators Chuck Grassley of Iowa and Ron Johnson of Wisconsin).

Expect two things to happen going forward. First, there will now be laser-focus in the media-Democrat talking points on Trump’s alleged lying to the grand jury, and much less emphasis on the national-security threat posed by his reckless handling of classified government intelligence. Second, because Democrats are determined to nail their nemesis, the calls to prosecute Trump for obstructing Congress in connection with January 6 (as the House January 6 committee recently urged) will grow louder, and the certainty that the Mar-a-Lago case should result in an indictment will diminish.

Donald Trump could be a lucky guy here, because the political problems inherent in indicting him over mishandling classified documents have now greatly increased for the Biden administration, special counsel or no special counsel. But by no means is he out of the woods at this point.