The classified document cases should worry Trump more than Biden

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There’s a line in an old song that lawyers talk about small details. That’s true. The law is all about the details. From one point of view, the two cases may be similar, but depending on the details, they may be different.

From one point of view, the two cases may be similar, but depending on the details, they may be different.

Classified documents were found in the offices and homes of former President Donald Trump and President Joe Biden from when he was vice president. In November, Attorney General Merrick Garland appointed Jack Smith as special counsel to lead the investigation into the presence of classified documents at Trump’s Mar-a-Lago residence. Thursday, after reports that classified documents from his vice president were found in Bidens home and office, Garland appointed Robert Hur as special counsel to investigate the matter.

So far, the stories seem similar. Neither Biden nor Trump should have classified documents after they leave office. These are people’s documents, not theirs.

But since the law itself is concerned with the details, not the headlines, the similarities pretty much stop there.

As a former president, Trump could be indicted, but perhaps the most important reason why Biden is unlikely to face indictment or criminal prosecution is that he is the current president. As we know very well from the four years of the Trump administration, the Justice Department has a policy against impeachment of sitting presidents. An opinion issued by the Office of Legal Counsel, a division of the Justice Department, held that charging the president with a crime would unconstitutionally impair the executive branch’s capacity to perform constitutionally mandated duties.

Trump is certainly the happy beneficiary of that policy. Special counsel Robert Mueller, who is investigating potential collusion between the Trump campaign and the Russian government, noted that the OLC’s opinion played into his decision not to indict Trump. While Mueller won’t say whether Trump committed a crime, we should take his decision not to recommend charges against Trump as proof that Mueller followed the OLC opinion rather than as proof that he believes Trump is innocent.

In a televised hearing in May 2019, Mueller said, referring to impeachment, that the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing, and some Democrats pushed that that happens. Sen. For example, Cory Booker, DN.J., tweeted. as Robert Muellers statement made clear: Congress has a legal and moral obligation to begin impeachment proceedings immediately. Of course, impeachment is a political process, and the penalty is the loss of a job, not the loss of liberty and imprisonment.

The GOP now controls the House of Representatives, and we know that members of that party are seeking to go investigate and possibly impeach Biden. But impeaching Biden for having classified documents would be wrong for two reasons. First, there is a good argument to be made that people can only be impeached for misconduct committed while in office. Biden’s retention of classified documents occurred after he left the vice presidency and before he assumed the presidency. Second, impeachment can only be obtained when the subject of impeachment has been involved in treason, bribery, or other high crimes and misdemeanors.

After a Trump lawyer falsely told the Justice Department that all requested documents at Trumps Mar-a-Lago residence had been returned, the Justice Department was ultimately forced to obtain and execute a search warrant.

For the reasons discussed below, Biden’s behavior is unlikely to be characterized as criminal, even if he is not the sitting president. There are also many reasons to believe that Trump will or at least should. Consider what each did after being alerted that he might be in possession of classified documents.

Trump reportedly ignored multiple requests from the National Archives for those documents, and after a Trump lawyer falsely asserted at the Justice Department that all requested documents at Trumps Mar-a-Lago residence had been returned , the Justice Department was ultimately forced to obtain and execute a search warrant. Prosecutors also argued that the Trumps’ team tried to hide documents found at Mar-a-Lago before and after the subpoena was issued.

Reportedly, in Bidens case, White House counsel alerted the National Archives once classified documents were found in Bidens former office in November. The National Archives did not ask; Offered by the Bidens team.

That team then looked for any additional government-owned documents. It found additional files at the Bidens’ residence in December and more last week, before the White House announced on Saturday that additional documents had been found on Thursday. Biden’s story is one of cooperation, not obstruction.

Also, the number of documents found is very different. Although there were hundreds of classified documents found at Mar-a-Lago, CBS News’ first report of classified documents found in Bidens former office cited sources who said there were about 10 such documents. It is unclear how many classified documents were eventually found.

Let’s be clear: One out-of-place classified document is too much. But the difference in scale is important. This is important because it can help show whether documents were taken accidentally, as a result of sloppy record keeping or willful misconduct.

And what did each person do with the documents? While Trump, according to a letter from the National Archives, appears to have shredded some of the documents found at Mar-a-Lago, there are no reports that any documents found in the Bidens’ possession were damaged, destroyed or changed.

Let’s be clear: One out-of-place classified document is too much. But the difference in scale is important.

These differences can have significant legal consequences. To rise to the level of a criminal offense, prosecutors would likely need to show knowledge or deliberate intent to take and retain government property. The federal criminal laws that Trump could be charged with violating require some level of scientific knowledge, which in simple language means knowledge about the nature of the acts. Federal law, for example, makes it illegal to knowingly or knowingly obtain or retain classified documents. Given the evidence so far, and Bidens seeming surprised that classified documents were found in his former office and current home, the necessary knowledge is likely lacking. Trump, by contrast, has alternately claimed that the documents were planted, or that he declassified the documents and that they are covered by executive privilege. None of these claims, it should be noted, appear to be based on fact and, therefore, will not reject a scientific requirement.

There is a perspective technique known as anamorphosis, which can leave the viewer with a distorted image of a subject when seen from a certain angle. But by moving away or changing perspectives, the distortion disappears, and the image appears clear. These two cases require us to look at them from the right perspective to see the truth.

As we now know, Trump faces the very real threat of criminal prosecution. Biden is not, and although part of that is due to the Justice Department’s policy against impeachment of sitting presidents, he is unlikely to be indicted even if he is not in the Oval Office.

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