Sauce for the goose is sauce for the gander
A Garland decorates his petard
The recent discovery of classified documents in the former D.C. personal office of now President Biden, as well as in his home and adjacent garage, has caused a stir within the Washington political class and beyond. Republicans, and not a few Independent political commentators, have focused on the similarities with the situation of former President Trump’s failure to properly store documents after leaving office. Most Democratic pundits and political operatives have tried to highlight the differences in the response by Messrs. Biden and Trump to the discovery of documents with classification markings.
The simple fact is that both gentlemen inappropriately stored documents. In the case of Mr. Trump, even if the documents had been declassified as he insists, they belonged to the National Archives, not to him. In the case of President Biden, he was storing documents clearly marked as classified from his time as Vice-President, continuing into his time as a private citizens, in several unsecured locations. Beyond the basic facts, there is a great deal of discussion about the motivations for storing the documents, the number of allegedly still classified documents, how much exposure of the documents to those not authorized to view them occurred, and how cooperative the two putative 2024 Presidential candidates have been with the Department of Justice and the Federal Bureau of Investigations - none of these are substantive to the matter, which is: did either Mr. Trump or Mr. Biden break the law in their inappropriate handling of the documents.
Mr. Trump’s case is more straight-forward - regardless of the classification status of the documents when they were moved from D.C. to Mar al Lago, Florida, after Mr. Trump’s term of office ended at noon on January 20, 2021, those documents were no longer his. Refusing to turn them over to the National Archives was a clear breach of normal procedures, and may even rise to a criminal offense. Whether it rises to being a serious criminal offense depends greatly on whether or not the claimed declassification was real and effective. Will the Department of Justice pursue a criminal case against Mr. Trump for mishandling classified information in addition to the overly long retention of documents to which he no longer had a right of possession? Probably not, for an outcome in Mr. Trump’s favor is a real possibility and should give the Attorney General pause, but pause may not be in his lexicon.
As for Mr. Biden, he cannot make the argument that he declassified these documents before moving them to his residence and a personal office - he certainly did not have such authority, even by delegation, once out of office. That said, a charge of recklessly mishandling classified materials faces at least two major impediments: 1) the DOJ adheres to a policy that the sitting President cannot be brought to trial; 2) if past is prelude, Mr. Biden will identify someone else to take the blame for his misdeeds, likely arguing that he was unaware of the mishandling until it was brought to his attention. The latter is a rather transparent fig leaf for an implausible denial, but Mr. Biden can rest assured that the Democratic Party cheerleaders in the Media will repeat the story until the narrative serves its distracting purpose. Regardless of the facts of the matter, there is little to no likelihood of Biden being charge, even after he leaves office, by which time the matter will have been forgotten, certainly by the current President.
Which brings us to Mr. Garland, the one who will decide whether or not to bring any charges against either of the two gentlemen.
It is worth noting that Garland decide to appoint a Special Counsel in the Trump matter after the classified documents’ discover was brought to the attention of the DOJ. In his statement announcing the appointment of a Special Counsel in the Biden matter, Garland reiterated his confidence that the DOJ could fairly investigate such matters without a Special Counsel, but that the law required the appointment. But he had no legal obligation to appoint a Special Counsel, so why did he do it? And why was he dissembling.
Clearly, or murkily, something else is going on beyond Mr. Garland applying the law in a fair and equitable manner. Facing a House Judiciary investigation of the politicization of the DOJ, Garland is trying to show that his department is even-handed, while at the same time assuaging Biden supporters, who are most likely outraged that Garland would put Biden on the same level as Trump by appointing a Special Counsel in his matter. No one in political circles, left or right, can be happy with him now.
Of course, he has only himself to blame for his twisting in the winds of political controversy. He did not have to send two dozen FBI agents into Trump’s residence to reclaim documents that belonged with the National Archives; he then did not have to pursue a criminal investigation against the former President once the documents had been recovered and delivered to the National Archives; and, he certainly did not have to appoint a Special Counsel to pursue a political vendetta against the former president. But he chose to do all those things, and now is self-compelled to appoint a Special Counsel to examine how, for how long, and where former Vice-President took possession of classified material, if for no other reason than to retain a scintilla of professional integrity. A Garland hoisted on his own petard.