The Trump–Biden Comparisons Are Beside the Point

I t was inevitable that two concurrent scandals involving classified-information violations, one implicating a former president and one implicating the current president, would be endlessly compared. But the fact that the two situations are being compared does not make the comparison very edifying.

That’s because when two people violate the same criminal statute, there are always differences in details and degree of culpability. They’ve both committed crimes, but those crimes aren’t identical. One may be worse in its details or degree of culpability, but the less-bad crime is still a crime.

In criminal law, we analyze crimes through two different prisms, liability and culpability — or, if you prefer, guilt and sentencing.

Liability asks the question of whether a person is guilty of a criminal offense defined by the statute. On that question, comparisons between offenders are irrelevant because guilt is personal — you are either guilty or not guilty based on your own behavior, not on how others have behaved.

If you are not guilty — if the prosecution cannot prove the elements of the penal offense at issue beyond a reasonable doubt to a jury’s satisfaction — then you are not liable for punishment, end of story.

If you are guilty, then we move on to culpability — the sentencing phase. And there, comparisons are highly relevant. How severely you are punished, or whether you are punished at all, is largely a function of how your actions in committing the offense stack up against the behavior of others who’ve committed the same offense. (The other major factor in sentencing is your personal characteristics, such as your criminal history.)

So while the predictable Washington parlor game is to compare Trump and Biden, the comparison is beside the point. The question of whether Biden violated the laws governing how classified information is to be handled does not turn on whether Trump’s conduct was worse. It does not even turn on Biden’s hypocrisy in ripping Trump for being irresponsible when he, too, was unlawfully retaining highly classified information in multiple unauthorized locations.

Rather, the question of whether Biden is guilty turns on whether his provable, personal conduct matches what the statutes controlling national-defense and classified information say. Trump’s conduct is not germane to that inquiry. Attorney General Merrick Garland appointed a special counsel because Biden may be in violation of the criminal law. And that special counsel, Robert Hur, will not be evaluating Biden’s behavior by measuring it against Trump’s; he will be evaluating it by measuring it against the applicable criminal statutes.

The Trump–Biden comparisons also obscure the fact that the Hillary Clinton precedent is the essential context for assessing both the Trump and Biden cases. As I wrote last week:

As secretary of state, [Clinton] 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.

So the Trump–Biden comparisons are a distraction. The Justice Department’s decision not to charge Hillary Clinton for her homebrew-server shenanigans is much more significant to both Trump’s and Biden’s cases.

From the Justice Department’s standpoint, the failure to bring any charges against Clinton — either for mishandling classified information, destroying government files, obstruction, or lying to investigators — was always going to make a Trump prosecution difficult to justify. Personally, I think the takeaway here is that Clinton should have been prosecuted, not that Trump is innocent. But that’s beside the point.

No, what matters is that growing public anger about our two-tiered justice system is a major political issue, one that will factor heavily in the 2024 campaign. Even absent the existence of Biden’s own classified-information controversy, the president’s reelection bid would be significantly endangered if his Justice Department indicted Trump for conduct analogous to that for which Clinton got a pass. In fact, that is exactly why Garland appointed a special counsel for Trump despite the lack of any real conflict of interest: He was trying to insulate Biden from responsibility for any decision to charge Trump (a futile strategy, since it could not obscure that the special counsel reports to Garland — Biden’s AG — and exercises Biden’s executive power).

The Clinton precedent left the Justice Department with, at best, very little justification for prosecuting Trump; prosecutors would have a hard time claiming that his actions were so uniquely awful, compared to Clinton’s, that an indictment was warranted. To make that case, prosecutors needed everything to go right. The last thing they could afford was the explosive development that the sitting president is now under investigation for violating the same penal laws Trump is under investigation for violating.

The significance of that development has nothing to do with whether Trump’s violation is more serious than Biden’s. It has to do with the politics of indicting Trump when Clinton got a pass and the justice system is already tainted by its disparate treatment of similar offenders depending on whether they are Democrats (not prosecuted) or Republicans (aggressively prosecuted).

Obviously, the Clinton precedent also appears to help Biden. The media–Democrat complex has tried its best to cement the narrative that Trump’s conduct was much worse than Biden’s, but the fact is that we’re still learning about Biden’s violations, and it may be some time before we can make confident assessments of that narrative. As of now, it does look likely that Biden’s conduct, while illegal, was less extensive than Clinton’s and Trump’s. And since Clinton wasn’t prosecuted, it would be at least as hard to justify prosecuting Biden as to justify prosecuting Trump.

But this is cold comfort to Democrats and their media allies. They know full well that Biden was never going to be indicted by his own Justice Department (including a special counsel selected by and reporting to Biden’s attorney general), not least because DOJ guidance prohibits the indictment of a sitting president. And they know equally well that Biden won’t be impeached and removed over this — House Republicans who continue to support Trump despite the Mar-a-Lago documents scandal can’t claim that Biden’s mishandling of classified information makes him unfit for office; and with Democrats in control of the Senate, there is no chance that there would be the required two-thirds’ supermajority to convict him anyway.

Instead, Democrats and their journalist sympathizers will continue fulminating that every time they think they have Trump in the crosshairs, he manages to slip away. That’s not really true, of course. Trump’s accumulated impeachments and criminal investigations have exacted real costs on him, politically and personally. But Democrats know that, after Clinton, and given the fact that Biden is not going to be charged for mishandling classified information, they’d be playing with fire by charging Trump for the same offense — fire that could make their 2024 hopes go up in smoke.