So Much for Prosecuting Trump

Between November’s midterm debacle, casual dinners with neo-Nazis, a 2024 campaign that launched to zero fanfare, and a “MAJOR ANNOUNCEMENT” that embarrassed even diehard fans, it’s been a rough go lately for Florida’s most famous semi-retiree. 

But everyone’s luck changes eventually. And Donald Trump is, after all, the luckiest man alive.

So we all should have anticipated that classified documents would eventually turn up at a private office Joe Biden maintained after leaving the vice presidency and before launching his 2020 campaign.

For months the reporting on Trump’s possession of classified material grew increasingly damning, shifting from a story about improperly retaining documents to a story about improperly concealing documents to a story about improperly obstructing the recovery of documents. Even some reliable Trump allies, presented with the facts alleged by the Justice Department, concede that there’s enough to indict him. No prosecutor wants to try a former president, knowing how they’ll be accused of politicizing criminal law, but at some point the malfeasance becomes so overt that declining to try him would itself amount to politicization.

As many, many others have said, an average Joe who removed as many sensitive documents as Trump did would already be caught in the gears of America’s justice system and ground to a pulp. He hasn’t been targeted because of who he is, he’s been spared because of who he is. So far.

But now that Team Biden has splashed into a classified documents scandal of its own, it seems likely to me that Trump will be let off the hook entirely. The one thing that could be counted on to drive wavering Republicans back into his corner in this matter has come to pass. They’ve been handed a “libs do it too” tu quoque on a silver platter.

I can hear Never Trumpers and Democrats screaming at me in the comments: “The two scandals are totally different! The facts of what Biden did aren’t even a scandal!” Perhaps. We’ll see what the reporting turns up. Maybe he and his team didn’t just misplace documents but deliberately hid them in hopes of keeping them forever. Maybe the feds asked for the documents back—repeatedly—and were filibustered and deceived by Biden’s aides. Maybe he really is guilty of what Trump appears to be guilty of.

But if he isn’t, do you trust Americans to make discerning judgments about that? It’s hard enough in 2023 for political junkies to hear themselves think over the din of partisan noise. Imagine the average voter who follows the news casually trying to navigate their way to understanding the similarities and differences between the two cases.

Charging Trump and securing a conviction that would be respected by a meaningful share of Republicans was always going to be a high wall for special counsel Jack Smith and the DOJ to scale. Unless Biden is also charged, the wall just got 10 feet higher.

The similarities between the cases are basic. Both Trump and Biden appear to have removed classified documents to private, non-secure spaces. Classified material belongs to the federal government, not to the officials who serve in it; those officials are supposed to return the material in their possession to the National Archives upon leaving office. Failing to do so is a no-no. Failing to do so and then storing the material in a space that’s not secure, where people who lack a security clearance might stumble upon it, is a bigger no-no.

The Biden documents, 10 or so in number, were allegedly recovered from a locked closet at the Penn Biden Center in Washington, D.C., on November 2, 2022. According to CNN, they “included some top-secret files with the ‘sensitive compartmented information’ designation, also known as SCI, which is used for highly sensitive information obtained from intelligence sources.” On Tuesday the network reported that some of the documents relate to Ukraine, Iran, and the U.K.

Not good.

The list of differences between the two cases runs a little longer.

Trump and his fans are quick to note one difference, the fact that he was president when he removed classified material to his private office whereas Biden was merely vice president. That’s an important distinction in theory since only the president enjoys the power to declassify classified material. Trump could conceivably have declassified the documents found at Mar-a-Lago. Biden couldn’t have declassified the documents found in the locker at the Penn Biden Center.

But it’s a silly distinction under the circumstances. After all, none of the crimes referenced in the Mar-a-Lago search warrant depend on information being classified. One had to do with obstruction, another had to do with destroying government records, the third had to do with retaining information related to national defense. Trump has spent months insisting that he declassified the documents he took with him through the power of his mind, without making any written record of the declassification, but that’s both insane and a non sequitur. Even granting that it’s true for argument’s sake, he’s still in legal hot water.

There are real distinctions between the two cases. For starters, there’s the sheer volume of material that was taken. As of late August of last year the feds had allegedly recovered more than 11,000 government records from Trump, of which more than 300 had classified markings. Of those records, 18 were labeled “top secret” and 54 labeled “secret.” Another 48 folders marked “classified” were discovered and found to be empty. According to the Washington Post, some of the Trump documents featured “highly sensitive information” about Iran and China that “could expose intelligence-gathering methods” if revealed. One document supposedly contained information on an unspecified foreign government’s nuclear defenses. Other documents were marked “HCS,” which has to do with clandestine intelligence assets—i.e, spies.

It’s conceivable that 10 classified documents were innocently misplaced while papers were being moved. But 300?

Another difference is how the material was recovered. If you believe Biden’s lawyers, they discovered the 10 documents in November themselves while packing files and immediately alerted the National Archives, which didn’t know the files were missing. Contrast that with the epic two-year multi-agency saga of trying to get Trump to return the material he’d taken, with the National Archives first asking for documents all the way back in May 2021. Over time, polite requests turned into cajoling, cajoling turned into warnings, warnings turned into subpoenas. After Team Trump returned some documents to comply with one subpoena, a Trump lawyer certified that there was no more sensitive material in his possession to her knowledge—which turned out to be false. Months later, surveillance footage of comings and goings in a Mar-a-Lago storage room convinced the feds that classified documents might still be on the premises and were being moved around. When the FBI searched the building on August 8, 2022, those suspicions were confirmed.

Even now, Trump continues to drag out the process. Late last year he hired a team of private investigators to search his properties for any other classified material. That team found two documents with classified markings in a storage unit in West Palm Beach. Alarmed, the feds asked for the names of the investigators so that they could speak to them directly—but Trump’s lawyers initially refused, then reluctantly agreed provided that the investigators’ names be kept secret. At wit’s end, an exasperated DOJ finally asked a federal judge to hold members of Trump’s office in contempt for having failed to fully comply with last year’s subpoena.

Beyond the number of documents taken and the effort required to get them back, the culpability of each of the principals in these matters might differ meaningfully as well.

A source told CNN that “Biden is still not aware of what is contained in the actual documents” that were found in the closet at the Penn Biden Center. Maybe that’s true, maybe it isn’t, but it’s notable that he wasn’t the only person there with a security clearance. Antony Blinken and Steve Ricchetti joined the center after serving in high-ranking positions in the Obama administration and before joining Biden’s government. One of them rather than Biden might have brought the documents into the building.

Setting aside the identity of the culprit, experts in the field note that intent matters, as tends to be the case in American law. Section 793(d) of the Espionage Act makes it a crime to “willfully retain” information related to national defense when an officer of the United States asks for it back. Mistakenly packing up classified documents with personal papers is a sin, but a venial sin provided that one puts things right once the documents are discovered.

Intentionally retaining classified material by defying government requests for its return is, on the other hand, a mortal sin. And there’s plenty of reason to think from prior reporting that what Trump did here was intentional. When the National Archives finally browbeat him into packing up and returning some documents early last year, “people familiar with the episode said Trump oversaw the process himself — and did so with great secrecy, declining to show some items even to top aides,” the Washington Post reported in August 2022. A New York Times report around the same time corroborated that, alleging that “Mr. Trump went through the boxes himself in late 2021, according to multiple people briefed on his efforts, before turning them over.” A Trump employee allegedly told the FBI that the boss himself had instructed him to move boxes of documents from the Mar-a-Lago storage room.

Why Trump insisted on retaining classified documents knowing the legal trouble it could bring him is unclear, but John Bolton’s theory has always struck me as elegant and plausible. Sometimes a child wants what a child wants, and the more you tell him he can’t have it the more he wants it.

An authoritarian like Trump will always struggle to grasp the distinction between his public office and his personal interest. (That deficiency led to the first of his two impeachments, in fact.) It’s the most logical thing in the world for him to have concluded that government property was and remains his personal property, especially when he had populist loudmouths like Judicial Watch chief Tom Fitton in his ear urging him to fight, fight, fight, fight, fight.

Maybe this will get worse for Biden. New reporting might reveal that there were more documents found at the Penn Biden Center than we thought or that their contents were especially sensitive or that he and his lawyers delayed notifying the National Archives or that they obstructed efforts to get the documents back. But until we hear any of that, we’re comparing a case of negligence to a case of theft. Both are examples of malfeasance but only one, if proved, is a crime.

Do you trust American voters to grasp that distinction, particularly those who are motivated for political reasons to see no distinction at all?

After the news about Biden broke, some optimistic anti-Trumpers took to speculating that the differences between his sin and Trump’s were so vast that the news would actually hurt Trump more than it would help him. The media now had an excuse to revisit the Mar-a-Lago saga and describe at length how much worse Trump’s behavior was, they theorized.

To which I say: Have we learned nothing from the last seven years?

Every Trump scandal is an implicit invitation to the right to find examples of liberals behaving badly in the same vein on the theory that there’s no vice in living down to the political standards of one’s enemies. (Indeed, that it’s weak and foolish not to do so.) The point isn’t to hold Trump’s antagonists accountable for their errors, it’s to make it harder for his antagonists to hold him accountable for his. That’s why a certain type of right-winger can’t talk about January 6 without mentioning Stacey Abrams’ election denialism or the fact that a few House Democrats inevitably object whenever a Republican wins the Electoral College. It’s less that they’re grievously offended by Abrams or those Democrats than that they’re keen to protect their guy from being held accountable for his obviously greater malfeasance.

That same sort of moral leveling will happen with the two document scandals. The former president took classified documents, the current president took classified documents. What’s left to discuss?

Trump has already set the tone for the Republican response. Mixed in with tributes to Ashli Babbitt and calls for brinkmanship with the debt ceiling on his Truth Social feed last night was this response to the Biden news.

The search at Mar-a-Lago that he never fails to describe dramatically as a “raid” was carried out by FBI agents dressed in polos and khakis, hoping not to make a scene that would inflame the public. (Ever the political arsonist, it was Trump himself, not the DOJ, who announced that the search had taken place.) And it’s unclear why he thinks the FBI should feel obliged to “raid” Biden’s homes absent probable cause to believe he’s holding back other documents from them. Not every former official knowingly conceals hundreds of classified documents for literally years, it may surprise him to know.

But it doesn’t matter. You can see already how this is going to go politically. “What’s the difference in what President Trump did versus what we now know President Biden did?” Rep. James Comer, the new chair of the House Oversight Committee, wondered after the news broke on Monday night. “We want to know exactly what documents were taken by both President Trump and now President Biden and want to know if they’re gonna treat President Biden any differently than they treated President Trump.” Kevin McCarthy suggested that our current president, being an old hand in Washington, should actually be held to a higher standard than a government novice like his predecessor. “President Trump had never been in office before and had just left, came out. Here’s an individual who spent his last 40 years in office,” he said of Biden. “It just shows that they were trying to be political with President Trump.”

At last check Trump was speculating wildly that Chinese money is funding the Penn Biden Center and therefore it must be the case that Biden was selling secrets to the Chinese.

After MAGA candidates went belly up in the midterms and Trump’s polling began to soften, I started thinking that being indicted for concealing documents might not rally Republicans to him after all. They did rally to him after the Mar-a-Lago search, with even rivals like Ron DeSantis forced to hyperventilate indignantly on his behalf about “the Regime” to prove their MAGA loyalty, but the growing perception that he’s become a liability to the party pointed to a different reaction this year if he were charged. Some right-wing voters torn between Trump and DeSantis might seize on the news of an indictment opportunistically to justify switching from the old guy to the new guy. “It’s a shame how the DOJ is railroading Trump. But now he has so much baggage …”

Last night’s revelations about Biden are making me rethink that. The stakes of the document scandal have been reframed from “Trump or DeSantis?” to “Trump versus Biden.” Many Republicans who otherwise would have been willing, however grudgingly, to hold an indictment against him will now decide for tribal partisan reasons that they can’t do that in good conscience if Biden isn’t indicted as well. Otherwise they’ll be siding with the “deep state” against Trump in a flagrant case of political double standards.

Case in point: Given his presidential aspirations, few people have more to gain than Mike Pence by making sure that voters know what Trump did was worse than what Biden did, at least based on the information currently available. Yet there Pence was on Tuesday morning, dutifully muddying the waters in an interview. Conservative media will be wall-to-wall with stuff like this the moment a Trump indictment is handed down, needless to say:

Before you know it, it’ll be MAGA canon that what Biden did was actually worse than what Trump did. And Trump, being Trump, will insist that Republicans in good standing toe that line going forward.

That’s not to say that Jack Smith and the DOJ won’t indict him. The title of this column is in error, hopefully; Smith should move forward if probable cause exists irrespective of the political consequences. I also think it’s shrewd of Merrick Garland to have tapped the U.S. attorney in Chicago—a Trump appointee—to review the Biden matter, as any decision not to prosecute will have a bit more bipartisan legitimacy as a result. But we all understand, I trust, that the task of convincing Americans that Trump has committed some singular wrong that requires prosecution is considerably harder than it was even 24 hours ago. In a society where everyone gets their political news a la carte, prepared precisely to their taste, it’s all too easy to whip up a dish in which Trump and Biden are guilty of the same thing. I don’t know that Merrick Garland will want to move forward in those circumstances, given what doing so would do to institutional trust in the DOJ.

Oh well. There’s always Georgia. 

I’ll give Trump and his defenders this much in closing. I think it’s fair to ask why the White House sat on this news for two months.

Remember, Biden’s lawyers discovered the documents at the Penn Biden Center on November 2, less than a week before the midterms. Only now are we learning of it. Why?

“The National Archives had no obligation to announce the discovery,” you might say. Okay. But didn’t the White House have an obligation?

The president had just been implicated in a dereliction of duty involving national security. At first blush, that dereliction looks minor. It was probably negligent, not criminal. But given all the scrutiny of how Trump and Hillary Clinton mishandled classified information, it’s not unreasonable to think Biden should have been transparent and let his constituents know that he too had been slippery with sensitive material.

He chose to wait until after a momentous election that decided which party would govern the new Congress to share the news. Go figure.

The excuse that’ll be made, I assume, is that the White House didn’t want to complicate a pending Justice Department investigation by throwing it into a white-hot political spotlight. Trump fans will cry foul, demanding to know why we learned instantly of the Mar-a-Lago search by comparison. But again, it wasn’t the DOJ that first confirmed that the search had happened. It was Trump. He wanted the public to know what was happening, believing wayward right-wing populists would rally behind him on the news ahead of 2024. Whereas Biden, knowing how swing voters might react to a pre-midterm bombshell about his own document scandal, decided to bite his tongue for a while.

Whether the sitting president should feel entitled to keep secret a federal probe in which he might be a target I leave to the reader to decide.