We are still in the early stages of discovering what the documents discovered in Joe Biden’s office at the University of Pennsylvania contain and how highly they were classified, so we don’t yet know how dangerous the violation was. But there are things to keep in mind as the story unfolds.
1. Biden’s lawyers did him a huge favor by instructing him not to ask about the documents
It’s the last stand of “don’t ask, don’t tell.” Still, as one tabloid used to proclaim,“Inquiring minds want to know.” In particular, we want to know how sensitive the material really was (overclassification is a problem in Washington) and where the documents were held between the time Biden left the vice presidency and the time the Penn Biden Center opened.
2. Biden might pay a political price for staying mum about possessing the documents improperly
But that price will be considerably diminished because the “neutral” press doesn’t want to hurt a Democrat. The public has observed that bias for years, eroding their trust in the press.
3. Pay no attention to the Department of Justice’s failure to leak anything about the documents’ discovery before the November election
It would not have affected any votes. The Republicans screwed up that election all by themselves. What the DoJ’s silence does tell us is that the department doesn’t leak much when disclosures could hurt Democrats. When they could hurt Republicans, the department is a sieve.
4. Merrick Garland is in a bind
The discovery of classified documents at Biden’s “think tank” (who, pray tell, was actually thinking there?) puts the attorney general in an awkward spot. The Special Counsel he appointed, Jack Smith, is looking into the classified documents kept at Mar-a-Lago, among other things. Republicans will scream if Trump is charged with improperly keeping those papers while Biden walks away scot free, just as Hillary Clinton did for keeping reams of classified documents on her home-serve computer.
5. Garland’s awkward situation does not mean Biden and Trump face the same document issues
Although our information is incomplete, we already know of at least three major differences between the two sets of documents.
First, the scale and possibly sensitivity of the documents. Trump had a lot more of classified documents and may well have had more sensitive ones.
Second, prompt compliance with National Archive requests. Biden’s lawyers say they immediately disclosed the documents to the National Archives and turned them over. Not so with Trump. The Archives discovered the former president had some documents, which he then refused to given them for months, despite repeated requests.
Third, possible obstruction of justice. Crucially, Trump and his attorneys actually certified that they no longer held any classified documents when, apparently, they still held some and knew that they did. That means Trump could be charged with obstruction of justice. There is no indication Biden did anything like that.
6. Biden would be less vulnerable legally even if he and Trump had done exactly the same thing
That’s because, under a long-standing ruling at the DoJ, sitting presidents cannot be charged with crimes. (That’s Congress’s impeachment responsibility.) The DoJ’s Office of Legal Counsel reached that conclusion several decades ago. The ruling doesn’t apply to former presidents, though none has ever faced the prospect of indictment.
The key points here are that we need to know a lot more about the Biden documents — and the public needs to know that any legal action will be applied without political bias. Trump’s bigger problem may not be withholding documents but lying about them. And, unlike Biden, he lacks the protection afforded a sitting president.