We won’t say “the walls are closing in,” but the sitting president of the United States is now, formally, the subject of a criminal investigation.
That is the upshot from Attorney General Merrick Garland’s Thursday afternoon announcement that he has appointed a special counsel — Robert K. Hur — to investigate President Biden’s mishandling of classified documents.
The facts are still unfolding, but the basic picture is that after his vice presidency ended, Biden retained highly classified documents in at least two unauthorized locations, an office he maintained at his Washington think tank (affiliated with the University of Pennsylvania), and a garage at one of his Delaware homes.
Richard Sauber, a deputy White House counsel, asserted that the president is confident that the special counsel’s investigation will establish that the classified documents were “inadvertently misplaced.” Even if true, this is not a defense to a criminal charge of mishandling classified information.
Government officials, even if they have not been handling classified intelligence for nearly half a century as Biden has, are well aware of the rules for reviewing, retaining, and safekeeping classified information, which are constantly drilled into them.
Their agreement to abide by those standards is the principal condition for obtaining privileged access to it. This is why officials may be found guilty if they have been grossly negligent in handling the documents, a standard that includes handling classified intelligence so cavalierly it is lost track of or is retained in an unauthorized location.
The statement by Sauber suggests that Biden’s lawyers are banking on a favorable exercise of prosecutorial discretion. In every criminal case, a prosecutor has to make two judgments: whether there is sufficient evidence to convict beyond a reasonable doubt, and whether a prosecution would be in the public interest. Remarkably, it already appears that special counsel Hur is onto the second question. Its answer is informed by such matters as precedent and whether there are other national interests that cut against bringing charges.
While many less famous government officials have been prosecuted aggressively for keeping classified intelligence in their homes and other unauthorized locations, Biden’s team knows that other top officials have committed egregious misconduct yet eluded indictment — most notoriously, former secretary of state Hillary Clinton, who was not indicted by the Obama–Biden Justice Department.
The elephant in the room, however, is Donald Trump. The Justice Department has spent many months carefully drawing a net around Trump that could end in prosecution for his own conduct of retaining classified documents at Mar-a-Lago. But the task of justifying to the public why a former president should be criminally charged for the first time in our history becomes vastly more difficult when DOJ has not only declined to prosecute his 2016 opponent, but is also potentially going to let the current president off the hook as well.
Democrats and other Biden apologists have spent the last several days trying to draw favorable contrasts between Trump’s behavior, which involves hundreds of documents and defiance of the government’s lawful efforts to force their surrender, and Biden’s, which seems to involve fewer documents, self-reporting of the violation, and cooperation with investigators. Yet the Justice Department’s real challenge in making a case against Trump is likely not the evidence, rather the Clinton precedent.
As both Trump and Biden are candidates for the presidency in 2024, moreover, prosecutors could justify a non-prosecution decision by reasoning that the public interest in keeping electoral politics insulated from intrusion by law enforcement (for a change) outweighs the interest in prosecution.
But will the cases be treated evenhandedly? There are reasons for concern in this regard.
Garland appointed Hur only because the latest embarrassing disclosure about Biden left him no more wiggle room. About two months ago, the attorney general appointed a special counsel for Trump even though there was no real conflict of interest, whereas investigating the Biden family’s influence-peddling, as the Justice Department has since 2020, is a blatant conflict of interest.
In addition, when Jack Smith was named Trump special counsel, Garland gave him a broad mandate, which includes not only classified documents but Trump’s connection to the Capitol riot, among other things. In naming Hur, though, Garland appears to have narrowed the scope of the probe to the classified documents, even though there is much else to investigate (foreign money, especially Chinese money, had a curious way of finding its way to the Bidens).
Hur’s appointment is meant to project the impression that he will be an independent prosecutor, but in fact he will report to Garland as the head of the Justice Department; and both he and Garland both ultimately report to Biden, the head of the executive branch and the source of the power they exercise. Hur is also bound by Justice Department guidance, which admonishes that a sitting president may not be indicted (any charges would have to await Biden’s departure from office).
Nevertheless, the public interest is in thorough, credible investigations of both the incumbent and the former president. And just as the Trump probe is of broad scope, the Biden probe must include the shady dealings that unlocked millions of dollars of foreign money. Fair play, and the imperative to root out government corruption, demands nothing less.