The fact that it took many months for Merrick Garland to appoint a special counsel in the special case against Donald Trump and not much time at all to appoint special counsel Robert Hur to investigate Joe Biden tells you everything you need to know.
Biden has inadvertently tossed Trump a totally unexpected lifeline. It may take more than one lifeline to rescue the much-investigated Trump — as the evidence on so many fronts keeps building against him— but one is a start.
Most legal scholars, whatever unscholarly Jim Jordan might say, are skeptical that Biden’s misadventures with classified material, while hardly insignificant, amount to a level of actual criminality. And besides, if there’s anything we learned from Bill Barr and Robert Mueller, it’s that the Justice Department doesn’t believe you can charge a president while in office.
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In any case, Biden’s mishandling of what seems to be a limited number of documents is certainly not in the same league as Trump’s crimes against classified material or, for that matter, his crimes against humanity.
Let’s see how the cases might differ: in scale, in intent, in the manner of, uh, cooperation, in apparent lies told to the FBI, in the possible destruction of documents, in the insistence by Trump that whatever materials were discovered at Mar-a-Lago — including, say, Trump’s love-letter correspondence with Kim Jong-Un —belong to him rather than to the National Archives.
We could go on, but let’s also be clear that the legal jeopardy in which Trump finds himself has less to do with apparently purloined documents than it does with, you know, the extent of his involvement in the January 6 insurrection and in his find-me-11,000-votes threat to sabotage American democracy.
Whatever you think of Garland’s decision, which was based on a report from a holdover Trump-appointed U.S. attorney, it’s no easy thing for an attorney general — who is appointed, after all, by the president, but is nevertheless expected to be a neutral arbiter — to decide to unleash a special counsel on the president. Garland said “extraordinary circumstances” required the move. If he didn’t name the extraordinary circumstances, it’s because everyone understood them, although many Garland critics, especially among Democrats, disagree about the circumstances.
I’m not sure Garland had a choice, at least in the political sense, not to investigate Biden for improper handling of classified documents after having already launched an investigation of Trump for improper handling of classified documents. I’d say Garland did what you’d expect him to do, although it will never be enough, of course, for his right-wing critics, some of whom are demanding to know why Biden’s home hasn’t been raided.
But there’s a counterpoint here, too. Maybe you noticed that Just-Barely-Speaker Kevin McCarthy said a special counsel wasn’t needed, and Garland should have just left it up to House GOP watchdogs, or, as we might call them, attack dogs.
I know I don’t have to tell you this, but these are strange times in which we live. As far as I can tell, there have never been two presidents — one, of course, a former president — simultaneously facing special counsel probes. Let’s hope it’s not a trend.
But it was Biden, after all, who railed against Trump as “irresponsible” for having held on to classified documents when he left office. And now it looks like it’s Biden, or someone on Biden’s team, who has also been irresponsible.
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And it’s worse than that. The first documents — dating back to when Biden was vice president — were discovered in November at Biden’s think tank. And while Biden’s lawyers did apparently inform the National Archives immediately, Biden didn’t bring it to public attention.
And when he did finally address the first batch of documents — a development Biden called “surprising” — it was only after there had been news reports about it. In addition, Biden failed to reveal there was a second batch found in his Delaware home’s garage in December, near his beloved 1967 blue Corvette Stingray, until, yes, there were news reports about those documents.
When Biden was taking questions at a recent White House event, Fox News reporter Peter Doocy asked, “Classified materials next to your Corvette? What were you thinking?”
Let’s just say that Biden’s answer didn’t put the question to rest.
“My Corvette is in a locked garage,” Biden said. “OK? It’s not like they’re sitting out in the street.”
Biden did then go on to say he took classified material “seriously” and that he was cooperating “fully.” That is the mitigating argument, of course, for anyone confused about the significant difference between Biden’s situation and Trump’s.
But in the newly Republican-led House, this will be just one more scandal, along with various faux scandals, to serve as endless fodder for endless committee investigations and endless hearings. Think back to Hillary Clinton and Benghazi for reference.
But unlike McCarthy, who, when he was Republican House minority leader, unwisely decided to have no Trump supporters on the January 6 Select Committee, Democratic leader Hakeem Jeffries will be sure that Democrats are fully represented on any committee investigating Biden or anyone in the Biden family — has anyone blamed Hunter yet? — or anyone on the Biden team.
Still, it may not be so good for Jack Smith, the special counsel who seems to be moving apace in investigating Trump’s role in the January 6 insurrection as well as his classified-document misadventure. Any Justice Department charges against Trump will be made that much more difficult to bring, at least in political terms, if there aren’t any brought against Biden.
And while the memory of special counsel Mueller’s spectacularly ineffective report on Russia’s attempt to interfere with the 2016 election will never go away, we obviously can’t forget Ken Starr, who was called on to investigate (under a slightly different law, as an independent counsel) the matter of Whitewater, which led not only to Bill Clinton’s infamous declaration that he did not have sex with that woman but also culminated in an impeachment trial.
No one can tell how or where or when these investigations will end. House Republicans have been looking for years — back to when Biden was a mere candidate — for any reason to impeach him. I doubt it will get that far, but I’m sure, if it doesn’t, we’ll hear loud protests from a certain former twice-impeached president.
And all because Biden’s unforced error offered up the gift of an unexpected lifeline.
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