There will be much to chew on as the criminal investigation of President Biden by the newly appointed special counsel, Robert Hur, unfolds. For now, my question is: Have we already, in effect, witnessed a guilty plea?
In announcing Hur’s appointment, Biden Attorney General Merrick Garland laid out the facts of the case that drove him to the decision. Biden, while he was a private citizen after the conclusion of his term as vice president, retained batches of classified information in unauthorized locations.
That is enough evidence of a federal penal offense to warrant a criminal investigation and potential prosecution — which is what’s necessary under Department of Justice regs to trigger the appointment of a special counsel.
The reaction to the special counsel appointment by Richard Sauber, the lawyer Biden has brought into the White House to help deal with investigations, was remarkable. He said the president was confident that the special counsel investigation would find that the documents in question were “inadvertently misplaced.”
That’s not a defense to a charge of mishandling classified information. It is tantamount to an admission of guilt. For conviction, federal law requires prosecutors to establish that the defendant was grossly negligent. There is no need to prove that an accused was trying to harm the United States; just that he was trusted with classified information and carelessly flouted the standards for safeguarding it.
So it appears that Biden is not challenging that the documents were classified, that the locations in which he kept them were not authorized, and that he failed to keep track of them. Why have an investigation when all the elements of the offense are established?
No doubt because sufficiency of the evidence is only one of the two questions prosecutors must ask before charging someone with a crime. The second question is whether, even if the person is technically guilty, an indictment is in the public interest.
It appears, then, that Biden’s approach will be to avoid discussing the slam-dunk evidence and spin the equities of prosecutorial discretion to his advantage. He’ll say that the number of documents was comparatively small, that he self-reported the violation as soon as it was discovered, that he immediately turned the documents over to the national archives, and that he cooperated fully with the investigation.
The subtext, of course, will be that this compares favorably to former president Donald Trump’s conduct — hoarding hundreds of documents, fighting government efforts to retrieve them for two years, misleading investigators, and claiming in the absence of any known proof to have declassified the documents.
Yet the subtext doesn’t change the stubborn fact that Biden is apparently guilty of essentially the same offense for which Trump is under investigation by a special counsel. With the 2024 election looming, the Biden administration knows much of the country is white-hot angry over our two-tiered justice system, where, for similar conduct, Republicans are aggressively prosecuted but Democrats get a pass. If Trump is charged but Hur closes the Biden case by recommending against an indictment, millions of Americans will be irate. Biden — for whom Garland and Hur ultimately work — can’t afford that.
Which brings us to the most significant equity of all on the question of whether charges should be filed: precedent, specifically the Hillary Clinton precedent.
The Biden team knows that Clinton committed willful misconduct in the emails scandal and got away with it. She purposely established a homebrew server system and improperly conducted government business over it for years, evading government record-keeping requirements.
When she was found out, she destroyed tens of thousands of government records, including classified intelligence, even though she knew her emails were relevant to ongoing investigations. Her lawyers pressured the Obama-Biden Justice Department to limit the FBI’s investigation, and even when she made preposterous statements to the FBI in her perfunctory interview, she knew she would never be charged.
Biden may have conceded technical guilt, but his team is confident that, if Hillary Clinton is the operative precedent, the Biden Justice Department (i.e., the Obama-Biden Justice Department 2.0) won’t charge him.
He’s probably right about that. But then again, if both Clinton and Biden get a pass, there is no way the Justice Department can justify charging Trump.
Now don’t throw stuff at me. I’m just telling you what is likely to happen, not what should happen. I believed Clinton should have been indicted because officials who are not famous and who hoard classified intelligence are charged, and some of them get sentenced harshly. And Democrats just spent several years telling us presidents are not above the law — at least when the president is named Trump.
In the America we want, there should be equal justice under the law for everyone, including President Biden. Alas, that is not the America we have at the moment.
Andrew C. McCarthy is a former federal prosecutor.