The appointment of special counsel Robert K. Hur to investigate how classified documents wound up at President Biden’s office at the Penn Biden Center for Diplomacy and Global Engagement and at his Delaware home has sparked speculation that the Justice Department is now less likely to pursue charges against former president Donald Trump for his willful retention of classified documents.
This is wrong — or at least, it should be. Nothing about the Biden investigation should impede the Justice Department’s inquiry into Trump. Indeed, allowing politics to color the Trump investigation would be a miscarriage of justice.
One could easily argue that Biden’s lawyers poorly managed the fallout from their discovery of classified documents at Biden’s office. But their actions do not appear in any way to be an effort to conceal or improperly retain documents.
As The Post reported last week, the Biden legal team sought to do everything by the book. Biden’s attorneys “adopted a strategy of caution and deference, making only limited moves in coordination with federal investigators to determine the number of documents involved, their significance and how they were mishandled. They hoped that would earn the trust of investigators, avoid comparisons with former president Donald Trump, who is under federal criminal investigation for his own mishandling of classified materials, and end the matter quickly.”
But Biden’s team made two errors. First, they failed to proactively search for other documents. The Justice Department sent a letter that, as The Post reported, asked Biden’s legal team to "secure the materials from the Penn Biden Center and refrain from further reviewing them or other relevant documents that might be stored at different locations.” But the letter didn’t stay to stop looking for documents. And it didn’t say the Biden team should decline to hire someone with a clearance who could go through the documents. In slowing down their own search and proceeding in a piecemeal fashion, Biden’s lawyers deepened the impression they were dragging their feet.
Second, the lawyers neglected the political implications of their conduct in favor of trying to placate the Justice Department. The lawyers seem to have imagined that they could clear everything up before it became public. That was a naive assumption in today’s political climate.
In fact, there is no indication that Biden’s team could have done anything to avoid the appointment of a special counsel. Attorney General Merrick Garland has said from the get-go that one of his top priorities — if not the top priority — was restoring the integrity of the Justice Department. That has unfortunate consequences for the Biden administration: Given the ongoing investigation into documents found at Trump’s Mar-a-Lago estate, any hint of mishandling classified materials by Biden would make the need for a special counsel virtually inescapable.
Unfortunately, all of this is hard to grasp for the public, which clearly does not understand the fundamental differences between the Trump and Biden investigations. A Quinnipiac poll finds that nearly 40 percent of Americans think that Biden should be prosecuted — despite the absence of any evidence that he even knew that he was in possession of the documents.
Nevertheless, the public’s confusion should not affect the evaluation of special counsel Jack Smith, who is leading the investigation into Trump’s situation. Unlike Biden, Trump presided over movement of the documents; personally went through them; failed to return the documents despite subpoenas and then allowed his lawyers to falsely state that he possessed no more classified documents; and made numerous statements arguing that he was entitled to keep them. It should be easy to prove “gross negligence” and to demonstrate the aggravating factors needed to prosecute his case, such as obstruction.
The White House might be upset with Garland’s decision to appoint a special counsel to investigate Biden, but that should be temporary. Given the facts that are known, Biden should be “cleared” in a reasonable timeframe as Jack Smith independently contemplates whether to charge Trump.
That’s as it should be. We simply cannot accept a system that ensnares someone who attempts to cooperate with investigators while simultaneously allowing a megalomaniacal former president to walk off with top secret documents without serious consequences.