Biden documents misstep helps Trump politically and legally

When confidential documents surfaced in President Biden’s former office, his home in Delaware and the garage of his Corvette, the political ramifications were predictable. Republicans happily charged Biden with the same crime that prompted the FBI to search former President Trump’s Florida home last August.

The newly crowned Republican chairmen of two House committees announced investigations against Biden – but not against Trump or former Vice President Mike Pence, who confessed to having found classified documents at home. Democrats lamented that Biden and his associates wasted moral superiority.

The differences between the cases are significant. Trump took home hundreds of classified documents; Biden a far smaller number, assuming no more showed up. Trump resisted returning documents to the government; Biden’s lawyers immediately reported them. Trump appears to have held documents on purpose; Biden’s advisers say his mistakes were unintentional.

Still, the impact of the Biden documents will likely extend beyond whataboutism and congressional hearings. Former prosecutors say the discoveries would make it harder for Jack Smith, the special prosecutor investigating Trump, to charge the former president with his misdeeds at Mar-a-Lago.

“It complicates things,” warned Donald Ayer, a senior Justice Department official in George HW Bush’s administration. “It would take a tin ear for Jack Smith to soon press charges in the Mar-a-Lago case.”

In theory, perhaps one study should not affect the other. But these are no ordinary cases. They include a president, a former president, and a former vice president — all three appear to be running for president in 2024.

On a practical level, the Biden and Pence cases could make it harder to secure a conviction against Trump — and that could make Smith, the special counsel, reluctant to press charges.

Under Justice Department regulations, a prosecutor must consider whether the evidence in a case is strong enough to secure a conviction from a jury. The fact that Trump isn’t the only former official to take home classified documents will play a role.

“It will inevitably affect a jury; You’ll be wondering why the administration isn’t prosecuting Joe Biden,” said Paul Rosenzweig, another former Justice Department official. “A prosecutor doesn’t want to go to court and lose.”

On a higher level, Atty. General Merrick Garland wants to appear impartial — particularly when a prosecutor he appoints is considering the unprecedented move to indict a former president.

“We don’t have different rules for Democrats or Republicans,” Garland said last week. “We apply facts and law neutrally and impartially.”

That’s why he hired a second special counsel, Robert K. Hur, to investigate the Biden documents.

But that didn’t solve the problem.

If Smith impeaches Trump but does not impeach Hur Biden, Trump supporters will inevitably accuse double standards. Many of you will believe it.

It’s not just die-hard Trumpists who will be concerned. The spectacle of Biden’s Justice Department haunting his predecessor would worry many who don’t love Trump.

In an ideal world, both prosecutors could report their findings and explain their decisions at the same time, so the rest of us could compare the two cases side-by-side.

But the two special counsels are said to be working independently, without day-to-day oversight from the Justice Department. There is no mechanism for them to coordinate their decisions.

“Neither special counsel will be able to explain how their decisions coincide with the other’s,” Harvard Law School’s Jack Goldsmith wrote in the New York Times last week. “The Attorney General obviously cannot do this either, since the essential decisions are formally beyond his control.”

Even if the two special counsels wanted to report at the same time, the timing of their cases could get in the way. The FBI has been investigating Trump’s Mar-a-Lago documents for almost a year. The investigation of Biden’s documents, on the other hand, only began a few weeks ago.

Special investigators usually have the luxury of working without a fixed deadline. But it is in the public interest to resolve these cases before voters begin picking candidates for the 2024 presidential election.

“The clock is ticking,” Rosenzweig remarked. But in the Biden case, “Hur won’t be done until the fourth quarter of this year. It doesn’t get any faster than that.”

Garland cannot control the timing of prosecutors — at least not without violating the principle that they should be independent of the attorney general.

But the two suitcases could still end up on his desk. Also the burden of having to explain to the Americans why the result was fair. If Garland had hoped that the appointment of special counsel would bail him out, he was apparently wrong.