It’s not because he is a well-meaning, law-abiding person.
It’s not because he is a well-meaning, law-abiding person.
I did a post Tuesday evening on the ill-conceived argument, posited by Biden Justice Department special prosecutors to rationalize the blatantly different treatment they’ve given to the very similar classified-information offenses of President Biden and former president Trump: Biden, they stress, cooperated with FBI investigators in returning classified documents to the government, while Trump obstructed the investigators.
It cannot be gainsaid that Biden cooperated and Trump obstructed. As I’ve countered, however, that would be a sensible rationale for charging Trump with obstruction, but not charging Biden with obstruction — which is what has happened. In no competent, conscientious prosecutor’s office would it be a rationale for not recommending the indictment of Biden on multiple counts of Espionage Act felonies after the same prosecutor’s office has charged Trump with dozens of Espionage Act felonies. And remember, the latter happened only after the Biden Justice Department’s mirror image, the Obama-Biden Justice Department, gave a complete pass to Hillary Clinton who, like Trump, obstructed an investigation.
And let’s be real: If Trump had done exactly what Biden did, including cooperating with rather than impeding the investigators, does anyone who has lived through the past three years believe that Jack Smith (or Alvin Bragg, or Letitia James, or Fani Willis) would not have charged him anyway?
As these prosecutors would surely tell you if the offender at issue were Trump rather than Biden, cooperation with law enforcement is a sentencing issue; it does not inform the question of whether a person is guilty of the crime the police were investigating. We expect, say, a murderer or a bank robber to cooperate with investigators once his crimes have been discovered. Such cooperation does not wipe out the underlying offense; instead, we prosecute the offense and, upon conviction, fully inform the sentencing judge of the defendant’s cooperation.
My purpose today is to make some points about cooperation.
Very often, a defendant who has been caught would like to cooperate but it turns out that he cannot meaningfully do so. It may be that by the time the police confront him, they’ve already got him dead to rights based on, for example, surveillance video, wiretaps, or the testimony of accomplices — and thus they don’t need his cooperation. Or the defendant could be the top-ranking member of a conspiracy; the police are happy to take cooperation from the guppies to nab the big fish, but not the other way around. Many times, in any event, there just isn’t much a defendant can do even if he’s of a mind to be cooperative.
But with Biden, there is immense evidence of cooperation. Why? Because his offenses were so serious, long-term, and sprawling.
For decades, Biden hoarded highly sensitive intelligence, including removing it from safekeeping on Capitol Hill, which senators well know they are not allowed to do. Biden, moreover, had many private locations — homes and offices — and irresponsibly spread the mounds of classified documents across them. It’s not like he had a single storage area, and it’s not like he made real efforts to keep his various storage locations secure — to deny access to people who were not authorized to read classified documents. Finally, Biden was so reckless and his offenses were so persistent, that he could not keep track of the classified documents he had retained.
On that last point, Biden apologists make much of the president’s “self-reporting” of his crimes. But he didn’t “self-report.” Instead, a first batch was unexpectedly discovered by private Biden lawyers, who were not authorized to have access to intelligence (certainly not intelligence classified at high levels). Those Biden underlings reported their discovery to the White House, not to the FBI. Biden was hoping to return the batch to government storage at the National Archives and Records Administration. But upon retrieving the documents, NARA officials — again, not Biden or his staff — alerted the National Security Division of the Biden Justice Department. (See Hur Report, pp. 19–20.)
After that, rather than immediately dispatching the FBI, the Biden DOJ allowed the president’s lawyers to search all of his locations without government supervision. To be sure, that indulgence would not be extended to most criminal suspects, but it was appropriate in an investigation of the sitting president. (Recall that Trump, a former president, was also encouraged to have his own lawyers conduct private searches and return documents to the government.) Yet, it turned out that Biden had so many documents, and that he had retained them in such a haphazard fashion, that the FBI had to conduct searches of his various private locations after Biden’s private lawyers had done so — and often, the agents found still more documents, even after Biden’s private lawyers had represented that they’d done thorough searches and surrendered all the materials they believed were in Biden’s private possession. (When this happened in Trump’s case, the immediate suspicion — for what turned out to be good reason — was that Trump or his lawyers were lying; in Biden’s case, the innocent assumption was that there were so many documents so randomly strewn about that Biden’s aides simply missed them.)
Biden apologists want the president to be lauded for consenting to the FBI searches of his residences. But the fact is that many criminal suspects consent to FBI searches. When it is obvious that there is probable cause that evidence of crimes will be found in a suspect’s home or office, resistance is pointless because the Bureau could easily obtain a search warrant from a judge. In Biden’s case, the FBI had mountains of probable cause. Politically speaking, then, an incumbent president calculated that his reelection hopes would not be advanced by having a federal judge find probable cause that he’d committed crimes; ergo, he consented to have his premises searched without a warrant, and then tried to make lemons out of lemonade by boasting about his cooperativeness. We should be glad that the president was cooperative, but it’s not like he deserves a medal of honor for it, much less a declination of prosecution.
Understand, then, that Biden did not cooperate because he is a well-meaning, law-abiding person. He cooperated because his offenses were so extensive that the FBI needed to search several locations for lots of classified intelligence that he’d willfully retained for decades in violation of federal laws with which he was intimately familiar — laws that, by the time he was found out, he had taken an oath to execute faithfully.
While we should give Biden credit for cooperating, in his case the cooperation should be seen as a measure of the gravity of his offenses, not as a reason to refrain from prosecuting him.