Special counsel Robert Hur’s report on Joe Biden’s misadventures with classified intelligence is flawed — at least if it is meant as a justification for not indicting the president; if it is meant as a predicate for invoking the 25th Amendment, it is quite well done.
The political caterwauling by Democrats against the special counsel is a misfire, as I argue in a column on the homepage. For now, I want to address the incoherence of what passes for the explanation of why Biden has not been indicted for mishandling national-defense information, even as former President Donald Trump faces dozens of such felony charges.
Specifically, I have a proposal that would help Biden politically (at a time when he needs it) while curing, at least in this instance, the scandal of disparate treatment in the Democrats’ unabashedly self-serving, two-tiered justice system: President Biden should pardon former President Trump on the Florida federal indictment’s 32 charges of illegally hoarding intelligence, narrowing the case against him to the eight counts of obstruction.
Hur’s rationale for not charging Biden echoes the Biden White House storyline, peddled from the moment it emerged that Biden had unlawfully hoarded classified documents for decades, at various unauthorized locations. To wit: Biden was cooperative with investigators, while Trump obstructed them, even in the face of a undeniably valid grand jury subpoena.
The problem: Cooperating with lawful investigative demands is what’s expected of all Americans, particularly the American who, above all others, is sworn to faithfully execute the laws. That is why obstructing investigators is a serious crime. Refraining from obstructing them is not something we give medals for. More to the point, cooperating with investigators is not a defense to the antecedent crimes the investigators are probing. To the extent it is relevant at all, cooperation is a sentencing issue, not a guilt issue.
The special counsel found that Biden willfully retained classified documents — national-defense information in the parlance of the criminal law. Biden Justice Department special counsel Smith has charged Trump with numerous felony violations of the Espionage Act, Section 793 of the penal code, which makes various acts of mishandling classified information felonies punishable by up to ten years’ imprisonment (for each offense). One of the acts so punished under the statute makes it a crime for an official trusted with access to national-defense information to permit it, through gross negligence, to be removed from its secure government storage, transmitted to someone not authorized to have it, or otherwise to mishandle it. (See §793(f).)
Biden is said to have done such things, and the prosecutor found that he acted consciously and willfully. Hence, it would not have been difficult to establish that Biden acted with gross negligence, a much easier mental-element for prosecutors to prove than willfulness. And, if I may double-down on this Hillary Clinton déjà vu, it makes no difference that Biden had no intent to harm national security because that is not an element of the crime — there’s no evidence that Trump intended to harm U.S. national security, either, in his irresponsible actions, yet the Biden Justice Department had no hesitation in investigating him, getting a search warrant to rifle through his home, and charging him with multiple felonies.
The fact that Biden cooperated with investigators while Trump obstructed them is a good reason to charge Trump, but not Biden, with obstruction (as Smith has also done). It is not a good reason to refrain from charging Biden with felony violations of Section 793 — to turn a blind-eye to multiple instances of criminal activity, committed over decades, before he started being cooperative.
The disparate treatment of Biden and Trump on mishandling intelligence makes no sense. Indeed, it is offensive — and becomes more offensive when one remembers that the Obama-Biden Justice Department similarly rationalized not charging former Secretary Clinton under Section 793 (among other potential criminal statutes) — even though Clinton, like Trump, obstructed an investigation (hers was a congressional investigation).
Biden can correct this scandalous disparity and help himself politically by pardoning Trump for the offenses involving mishandling of national-defense intelligence.
First, it would be the right thing to do.
Second, by doing the right thing, Biden could demonstrate that he has a firm grasp on what the right thing is, and what the appropriate distinctions are between his case and Trump’s. That would help him at a time when many suspect his capacity to grasp such details has deteriorated.
Third, by doing the right thing, Biden can demonstrate to the electorate that he understands how two-tiered justice has millions of Americans angry. His administration has engaged in so much partisan favoritism that pardoning Trump’s intelligence offenses would not nearly even the score. But it would be a step in the right direction.
Fourth, Biden would be exhibiting magnanimity toward an opponent who is uniformly nasty in speaking about Biden, which would bode well for him. For a little while at least, it would make amends for what turned out to be the fraudulence of his inaugural vow to unite the country.
Fifth, Biden would be putting Trump in the position of accepting a pardon if he wants those 32 counts to disappear. (Of course, Trump would never be sentenced to over three centuries of imprisonment, but any convictions on charges of this gravity would call for some incarceration under the sentencing guidelines.) If Trump were to accept the pardon, that would be taken as an admission of guilt after he vigorously insisted he’d done nothing wrong. That, certainly, is how the media would cover it.
Finally — and this is the part that might prevent Biden’s base from going berserk — such a pardon might be the only way that Trump’s Mar-a-Lago case could get to trial before Election Day. At present, the case is hopelessly bogged down in classified-information discovery and admissibility issues (as some of us predicted would happen). If the intelligence documents counts were erased, however, the case would be boiled to whether Trump intentionally defied a grand jury subpoena, caused false statements to be made to investigators, and conspired to tamper with evidence. The substance and seriousness of classified documents would no longer matter — the only issue would be whether Trump possessed government documents that were physically marked as classified. Admissibility questions about the documents would dramatically narrow, Trump’s claims that the needed access to other classified documents in order to defend himself would be mooted, and the obstruction case could go forward and probably be completed quickly.
To be clear: I do not support Biden. I do not want him to be president for one more moment, much less for another nearly five years. Moreover, while I don’t support Trump, I did not want a former American president to be indicted — he should have been impeached and convicted, yes, but not indicted. Jack Smith could have written a damning report (like Hur did) that would have informed the electorate of what his investigation uncovered — as to both the Mar-a-Lago misconduct and the 2020 election-interference. That would have made Trump even more unelectable (at least with the general public, as opposed to the Trump-smitten GOP base) than I believe he already is. I think even Democrats will come to rue their partisan exploitation of the justice system — what goes around comes around.
My point here is to diagnose where Biden is at politically and legally. The pardon I am positing would be a dramatic move that would shake things up. It would move the national discussion off Biden’s decline and highlight the legitimate reasons for distinguishing his case from Trump’s. It would improve Biden’s standing with many voters who, though not favorably disposed toward Trump, are beginning to see him, if not as inevitable, at least as preferable to the declining Biden.
That is, it would be a good idea. Biden half-century in public life is a story of resisting good ideas, so I don’t expect he’d do it. But he should.