Either charge both Trump and Biden with Espionage Act offenses or charge Trump solely with obstruction and drop the Espionage Act counts.
Biden Justice Department special counsel Jack Smith responded to former president Donald Trump’s selective-prosecution motion to dismiss the Mar-a-Lago–documents indictment by repeating, yet again, the Biden administration mantra: Trump and President Biden are not similarly situated because Biden cooperated with investigators while Trump obstructed them.
This is not a basis for treating their Espionage Act violations differently. It would be a basis for charging Trump, but not Biden, with obstruction.
Not surprisingly, Smith’s rationalization is the same as that of Robert Hur, the Biden Justice Department’s special counsel regarding the incumbent president’s mishandling of classified documents.
In many ways, Biden’s offense was more extensive than Trump’s. As president, Trump was undeniably authorized to keep classified intelligence in his possession, at least until he left office. His offense of moving highly classified documents to Mar-a-Lago, which was not an authorized location once he left office, and retaining them there, while appalling, was limited in duration. Biden, on the contrary, was not authorized to possess national-defense information outside a secure Capitol Hill location while he was in the Senate. Yet he took documents from their secure storage and kept them at various private locations, going back decades. He was well aware that he was in possession of classified information in unauthorized places, but he maintained it there so he could easily refer to it. This is why Hur concluded that his offense was willful.
This doesn’t mean Biden’s offense was worse than Trump’s. They were comparable. Cooperation after the crime has been discovered, which Biden prosecutors and Democrats insist is what makes Biden’s conduct more benign, is not a defense to a charge of mishandling classified documents — for decades. When a person commits a serious crime, he is supposed to cooperate with the authorities; that cooperation is not a rationale for declining to charge the serious crime. The failure to charge Biden, when Trump has been charged in dozens of counts, is inexplicable. Indeed, for someone to be convicted under the Espionage Act, a prosecutor need only prove the defendant acted with gross negligence; having concluded — based on solid evidence — that Biden acted willfully, establishing gross negligence would have been a layup.
The point is not that Biden should be charged. It is that there is no coherent reason to charge Trump when a pass has been given to both Biden and Hillary Clinton (who also mishandled national-defense information and obstructed a congressional investigation). On the narrow issue of mishandling classified information, the cases should be treated the same. Since they have not been treated the same, it is fair to assume that the Obama-Biden Justice Department and the Biden-Harris Justice Department decided to turn a blind eye to the misconduct of top Democrats while throwing the book at their political rival.
To repeat what I contended after Hur’s report was issued, if what distinguishes the Biden and Trump situations is obstruction, then Trump should be charged with obstruction and the counts related to mishandling national-defense information should be dropped. The obstruction counts alone in Smith’s indictment would expose Trump to decades of potential imprisonment; if he were convicted, Smith could then use his willfulness in mishandling classified intelligence to argue for a stiffer sentence. But there is no principled reason for subjecting Trump to classified-documents offenses when Biden is being spared.
If the cases were treated evenhandedly, and Biden were charged with violating the Espionage Act as Trump has been, then — analogously — Biden’s cooperation with investigators is a sentencing issue. Prosecutors could rely on it to argue that Biden should receive more leniency than Trump got. But Biden’s cooperation is irrelevant on the question of whether he is guilty of the underlying crimes.
Cooperation with lawful information demands by federal investigators is expected of Americans — especially of the American president, who is sworn to see that the laws are faithfully executed and on whose authority federal investigators conduct their probes. We don’t reward people for complying with subpoenas and similar requests for relevant evidence; we prosecute people who do not comply.
If Trump is being prosecuted on classified-information offenses, then Biden should be. Since Biden is not being prosecuted on classified-information offenses, then Trump should not be. If what makes the cases different is Trump’s obstruction, then charge Trump with obstruction only and call it a day. That would makes sense — it would be a principled distinction.
The only way to make sense of the disparate treatment of Trump and Biden on classified documents is that the Biden Justice Department special counsels’ decisions are political and inconsistent with President Biden’s obligation to see that the laws are enforced evenhandedly.