Biden’s classified information scandal forces the Justice Department to reframe the Mar-a-Lago case.
In the last NR print issue, and in a number of our recent podcasts, I’ve related that President Biden’s classified-documents scandal has been a particular blow for the Justice Department. The Trump classified documents scandal was like manna from heaven for Biden’s DOJ, which realized that a Trump prosecution is the most devout wish of the Democratic base.
Prosecutors had been struggling to make a January 6 case against the former president. But, as we’ve explained, there is a dearth of evidence tying Trump to the violence of the day (at least in terms of criminal culpability, as opposed to his political and moral responsibility for it). So, to make the case, prosecutors would have to pitch constitutional lawyer John Eastman’s wayward legal theory (the notion that then-vice president Pence had authority to discount electoral votes certified by states won by Biden) as a criminal fraud — a bad idea and a terrible precedent for the DOJ to set.
Yet, then along came Trump’s hoarding of hundreds of classified documents at Mar-a-Lago, a crime the penal code treats as a serious felony and that would be a comparative lay-up to prove. Thus a Trump indictment had become a matter of when not if, and as prosecutors got their ducks in a row, the timing seemed more a matter of the political calendar — Biden and savvier Democrats want Trump to be the GOP nominee in 2024 — than any concern about evidence.
The revelations that Biden is a serial hoarder of classified document threw a wrench into those works, as did news that former vice president Mike Pence — the putative choir boy widely admired for rebuffing Trump’s scheme to overturn the 2020 election — also illegally retained classified information at his home. The only real obstacle to a Trump indictment had been precedent: the complete pass given to Hillary Clinton by the Obama-Biden DOJ in 2016 for an egregious classified-documents violation. The Biden DOJ was poised to indict Trump anyway, on the rationale that his violation was uniquely awful. The Biden and Pence scandals undermine that strategy.
Democrats still want Trump to be prosecuted. Indeed, as we noted yesterday, a Democrat state district attorney in Atlanta is preparing to do just that. So, what do you do if you’re the Biden Justice Department? Well, as I’ve previously contended, two things. First, obviously, redouble the effort to make the January 6 case. Second, try to alter the public perception of the Mar-a-Lago case: Instead of emphasizing the illegal retention of highly classified intelligence, emphasize the obstruction of a federal grand jury — the element that is not present in the Biden case (or, now, in the Pence case).
On the latter strategy, I have a new op-ed in the New York Post:
Out with reckless mishandling of classified information, in with grand jury obstruction.
Ever since the Biden scandal came to light, the media-Democrat rhetoric has taken a decided turn. With Biden, and now Pence, having apparently committed the same criminal offense as Trump — namely, gross negligence in the mishandling of national defense intelligence — Biden and his apologists have countered that the conduct is actually very different. Their reasoning? They posit that Biden and, now, Pence have fully cooperated with investigators, while Trump fought and misled investigators for over a year-and-a-half.
In this, the commentariat is conflating the separate criminal-law issues of liability and culpability. All three men — Trump, Biden, and Pence — seem to have committed the same offense, i.e., they are all equally liable.
The fact that Trump has been combative while Biden and Pence have been cooperative means that Trump’s behavior is more culpable; but that is not a defense for Biden and Pence. It just means that, as in every case where multiple people commit the same crime, the conduct of some is worse than that of others. Relative culpability explains why some defendants are sentenced more severely than others; it doesn’t expunge anyone’s guilt.
But that is not how Biden’s DOJ appears to be playing it. Like the Biden and Pence camps, they are shifting their attention — and thus the public’s attention — to Trump’s obstructive conduct. What matters is not the illegal retention of classified documents, which we are expected to ignore because it was supposedly “inadvertent,” as Biden’s flacks put it (even though that is not a defense).
What now matters is Trump’s dodging of the investigators — the behavior that is said to distinguish him from Biden and Pence.
Please check out the whole column, here.