DOJ’s Pence Decision Lays Groundwork for Excusing Biden While Prosecuting Trump

All three men have violated the letter of the law, but only one of them is in danger of indictment.

H eading into the weekend, the Biden Justice Department quietly advised attorneys for former vice president Mike Pence that the investigation of his criminally negligent mishandling of classified information has been closed without charges. The decision and its rationale lay the groundwork for prosecutors similarly to close without charges the investigation of President Biden himself for his criminally negligent mishandling of classified information.

In stark contrast, the Biden Justice Department appears primed to prosecute former President Donald Trump for criminally mishandling classified information. The disparate treatment will be explained away by framing Trump’s misconduct as an obstruction, rather than a document-retention case. It will also be prosecuted by a special counsel, Jack Smith, whom the Biden administration and its media allies will pretend is independent of the Justice Department — even though Smith reports to Biden attorney general Merrick Garland, and exercises executive power as a delegate of Biden himself.

According to CNN, the letter provided by the Justice Department to Pence’s attorneys was terse. The former vice president was advised, “The Federal Bureau of Investigation and the Department’s National Security Division have conducted an investigation into the potential mishandling of classified information. Based on the results of that investigation, no criminal charges will be sought.”

Nevertheless, CNN and Pence’s advisers, who have been in regular contact with investigators, elucidated the Justice Department’s thinking. Although he initially blasted Biden when the latter’s illegal hording of classified intelligence came to light in January 2023, Pence — then planning the presidential bid he will announce this week — quickly realized he’d better tend to his own glass house. Upon his instructions to aides that they should search his Indiana residence, about a dozen classified documents were found, as well as other Trump administration records that should have been turned over to the National Archives and Records Administration (NARA).

Here is the main point: Upon finding these documents, Pence’s team immediately notified NARA and the FBI. The former vice president caused all of the records, including the classified ones, quickly to be returned to the proper government repositories. Moreover, Pence voluntarily consented to FBI searches of his home and private office so that national-security agencies could be confident that there was no continuing threat that defense secrets could fall into the wrong hands. Like Biden, Pence has maintained that his possession of classified intelligence after leaving office was inadvertent — the result of a sloppy process, not intent to illegally retain documents.

None of this is really a defense under the Espionage Act as written. Subsection (f) of the law makes it a crime, punishable by up to ten years’ imprisonment, for an official who has been trusted with possession of national-defense information to allow it, “through gross negligence,” to be removed from an authorized repository, or delivered to an unauthorized person. The statute makes a prompt report a defense only if a recklessly retained document has subsequently been lost, stolen, abstracted, or destroyed. That is, the official would still be liable for having grossly negligently removed or delivered the document; the failure to promptly report that a mishandled document had been lost, stolen, etc., would be an additional violation.

Nevertheless, the Espionage Act is rarely enforced as written. Indeed, the Obama administration effectively rewrote the statute in order to avoid indicting Hillary Clinton. The FBI’s then-director, James Comey, dubiously maintained that no reasonable prosecutor would charge Clinton over her reckless mishandling of top-secret intelligence because there was no intent to harm the United States. This echoed remarks by then-president Obama.

It was a strawman claim, though. Other provisions of the Espionage Act address dissemination of national-defense information with an intent to harm the U.S. The provision that was pertinent to Clinton — and is pertinent to Pence, Biden, and Trump — deals with a very different issue: government officials who violate the trust reposed in them by exhibiting gross negligence, not bad motive. These officials are given privileged access to the nation’s defense secrets based on their agreement to abide by stringent rules for the safekeeping of that intelligence. Under the statute, their lack of willfulness is irrelevant.

Of course, the statute can only be enforced by the executive branch — the same branch whose officials typically violate it, privately grousing that the protocols for safeguarding sensitive intelligence are overly burdensome. Ergo, the attorney general declines to prosecute, rationalizing that the official involved — frequently, also a member of the incumbent administration — did not act malevolently and cooperated with the FBI and NARA. These declinations then become precedents for declining to prosecute in future cases.

This cozy arrangement suddenly became inconvenient in 2021. That’s because Democrats regard Donald Trump as a sui generis evil, to whom precedents and norms against prosecution must not apply. Thus was the Biden Justice Department poised to indict him over his document retention at Mar-a-Lago notwithstanding the egregiousness of the misconduct that was excused in Clinton’s case — which included destroying thousands of documents, consequently obstructing a congressional investigation (of the government’s security lapses in connection with the Benghazi massacre), and giving some absurd answers when questioned by the FBI.

But Biden’s lawless retention of classified documents threw a wrench in the works of the plan to prosecute Trump. It is now established that Biden’s offenses go back decades — to his time in the Senate, when he had no reason to possess sensitive intelligence in unauthorized locations because senators are only permitted to peruse such documents in approved, secure government locations. And Biden was so reckless that classified documents have been located in several of his private, unauthorized locations. Then along came Pence, the putative choirboy whose violation was discovered right after he posed as aghast that Biden could have stashed in his home classified information that he’d been trusted with as vice president.

Suddenly, the Hillary precedent was not the only problem. How could the Biden administration follow through with the plan to prosecute Trump over unlawful retention of classified documents when it was obviously not going to recommend that Biden be prosecuted for his humiliating offense?

It would be politically untenable to prosecute Trump unless prosecutors could spotlight some aspect of Trump’s case that distinguishes it from Biden’s. As I’ve been pointing out since Biden’s offenses came to light, the way to do that is to reframe Trump’s offenses as an obstruction case rather than an illegal-retention-of-classified-information case. (See here, here, here, here, and here.)

With that in mind, Pence’s offense ironically became a boon for the prosecutors — including Robert Hur, the special counsel Garland was forced for appearances’ sake to appoint in Biden’s classified-documents case because he had already appointed Smith in Trump’s case.

Thanks to Pence, the Biden Justice Department can argue that its inevitable decision not to recommend charges against Biden is not special treatment — despite the looming prosecution of Trump. Pence enables the Biden administration and the media-Democratic complex to twaddle that Biden isn’t the only busy top official whose unlawful retention of classified documents can be chalked up to sloppy staff work. Pence helps Garland rationalize that, when these unfortunate mistakes are discovered, the main consideration is not whether the Espionage Act has technically been violated, but whether the busy official enmeshed in these inadvertent, totally understandable mishaps — or, in Biden’s case, mishaps that go back decades and involve taking documents he wasn’t allowed to possess as a senator — has cooperated with the government to ensure that all classified documents are accounted for.

Pence, then, helps the Biden administration make the case that the real crime is not being grossly negligent by retaining sensitive intelligence in unauthorized locations. It is being uncooperative with NARA, the FBI, and the Justice Department as they try to recover the top-secret documents — and, worse, deceiving government officials and the grand jury when they attempt to investigate the document retention. That is, the real crime is obstruction . . . at least when the obstructor is named Trump, not Clinton.

To be clear, in opining that Smith will portray his eventual indictment of Trump as an obstruction case, I am not saying the prosecutor will completely ignore Trump’s document-retention offenses. To the contrary, Smith will surely include them (even though Clinton and Pence have been given a pass, and Biden will be given a pass, for equivalent offenses). Of course, the Biden administration will insist that this disparate treatment has nothing to do with politics. Rather, the claim will be that once an official crosses the Rubicon of obstructing the investigation, all the prudential considerations that counsel against prosecuting cooperative officials vanish. Because Trump is guilty of intentional misconduct, while the others will be said to have innocently erred, Smith will feel free to throw the book at him. But it will be done under the rubric of obstruction.

So the dropping of the Pence investigation is a sign that the Biden investigation will be made to go away, too, while Trump will be indicted.