Trump allies blame Biden’s indictment, but here’s how it works

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The indictment of former President Donald Trump on 37 federal charges related to his alleged mishandling of classified documents has sparked widespread outrage among his conservative supporters, many of whom have denounced the investigation as politically motivated.

Trump, through his attorney, Todd Blanche, pleaded not guilty to all charges at the impeachment hearing in Miami on Tuesday afternoon following a grand jury indictment last week.

Amid the flood of criticism, accusations quickly emerged alleging President Joe Biden was directly involved in or oversaw the investigation.

House Speaker Kevin McCarthy posted a tweet on June 9, viewed 13 million times, that read, “It is impermissible for a president to indict the leading candidate who opposes him.

Former President Donald Trump (left) delivers remarks at Trump National Golf Club in Bedminster, New Jersey on June 13, 2023. President Joe Biden (right) speaks during a Heads of Mission Reception in the East Room of the White House on June 13. , 2023, in Washington, DC Trump’s indictment for alleged mishandling of classified documents led to charges of Biden involvement.LR: ED JONES/AFP via Getty Images; Alex Wong/Getty Images

On the same day, conservative commentators Matt Walsh and Benny Johnson joined them. Walsh’s post, viewed 2 million times, read: “Biden indicted his main political rival for doing something he himself also did.” Johnson posted a live stream titled “President Trump Indicted by Biden.”

McCarthy followed up on his comments on Monday, tweeting that Biden was “arming the feds to go after his main political adversary.”

The process that led to Trump’s impeachment is complex, involving multiple agencies and officials. Characterizing the investigation as Biden-led does little to explain this complexity.

With that in mind, Newsweek investigated whether the facts of the case demonstrate evidence that Biden was implicated in the indictment.

To begin, we need to go back to the steps that led to Trump’s impeachment.

The indictment process began in May 2021 when the National Archives and Records Administration (NARA) asked Trump to turn over presidential records he kept after he left the White House.

While 15 boxes were turned over to NARA in January 2022, the case was referred to the Department of Justice (DOJ) after an examination of the boxes revealed they contained classified documents.

Two investigations were then launched, one by the FBI in March 2022, and the other by a federal grand jury in April 2022, as stated in the indictment.

It should be noted that the DOJ asked the White House to ask NARA to provide the FBI with access to the boxes.

However, as explained in a 2023 analysis by FactCheck.org, this is because under the Presidential Records Act of 1978, executive branch departments and agencies (such as the FBI) ​​can request special access to records held by NARA through the President, not through NARA.

The request itself is not a matter of collusion but the means by which the authority was granted to assess the documents, i.e. it was not under the direction of the White House in itself.

In May 2022, a grand jury issued a subpoena that compelled Trump to turn over all classified material.

It was also a grand jury from the Southern District of Florida that voted for the indictment.

Former President Donald Trump speaks at Trump National Golf Club on June 13, 2023 in Bedminster, New Jersey. Earlier in the day, Trump pleaded not guilty in federal court in Miami to 37 counts, including unlawfully possessing defense secrets and obstructing government efforts to recover classified documents. Chip Somodevilla/Getty Images

It is also helpful to understand the role of grand juries in this area, as the explanation demonstrates another level of independence within the investigation.

As mentioned, the subpoena seeking the requisition of classified documents and the indictment were the result of a grand jury motion and vote, respectively.

Robert Fisher, a partner at the law firm Nixon Peabody LLP who has more than 15 years of experience in federal and state prosecutions, told Newsweek that the agencies involved in the investigation do not have the power to subpoena a grand jury.

“You have to go to a federal prosecutor for this, okay, so they’ll have to go to a federal prosecutor and say, ‘I need a grand jury subpoena,'” Fisher said. . “When this grand jury subpoena is issued, that is the start of the grand jury investigation.”

Although these juries have already been convened within the DOJ, the jury is composed of an impartial body of citizens who have the power to issue subpoenas or issue an indictment.

As explained in an FBI procedural guide on federal prosecutions, if an indictment is not issued, arresting officers in an investigation will have to bring the suspect before a magistrate or judge. “who will then determine whether there are probable grounds to believe that the arrested person committed a crime.”

As was the case with Trump, however, the indictment was issued by the grand jury, which led to his impeachment.

So we now know that the investigation has several layers of independence. The subsequent grand jury indictment also gave prosecutors the ability to arraign Trump without having to take the case to a judge or magistrate, appearing to foster that independence.

In a further attempt to ensure independence from DOJ involvement, in November 2022, U.S. Attorney General Merrick B. Garland appointed former Chief Prosecutor of the Special Court in The Hague, Jack Smith, to oversee the investigation of classified documents.

U.S. Attorney General Merrick Garland speaks during a ceremony honoring law enforcement and an Internet Crimes Against Children Task Force at the Department of Justice in Washington, DC, May 24, 2023. MANDEL NGAN/AFP via Getty Images

Although the Justice Department’s involvement has led to allegations of politicization, the accusation appears to be political conjecture rather than an evidence-based claim.

Garland has also faced the wrath of conservative critics, with Sen. JD Vance, a Republican from Ohio, tweeting on Tuesday that Garland was “using his agency to harass Joe Biden’s political opponents.”

While Biden could have chosen Garland, the nomination still required Senate approval. Additionally, Smith’s appointment as special counsel was made to help prevent DOJ conflicts of interest.

Biden, speaking to reporters recently, denied speaking to Garland after Trump’s indictment, saying, “I haven’t spoken to him at all, I won’t speak to him, and I have no comment on what happened. happened.”

Former U.S. attorney Paul Charlton, a partner at Dentons US LLP, told Newsweek that while the attorney general is a cabinet official subordinate to the president, “by longstanding tradition, the Department of Justice and its head, the attorney general general, insisted and operated with greater independence.

“The president can lead the attorney general on policy issues. The Clinton administration asked Janet Reno to focus on environmental issues and she complied. But a president cannot lead cases, investigations, or specific prosecutions.

“There are some notable examples in history of this independence in action. When the then President [Richard] Nixon ordered then-Attorney General Elliot Richardson to fire the special counsel investigating Watergate, Richardson refused, and the Saturday Night Massacre happened. More recently, former Attorney General Bill Barr refused to follow President Trump’s instructions regarding the election.

“Similarly here, Attorney General Garland, who in his confirmation hearings swore to uphold the independence of the DOJ, took no orders from President Biden. It was a decision made independently and without direction or consent of the White House.”

The independence layers strongly suggest that not only were the White House or Biden not involved in the investigation, but even the officials directly involved took reasonable steps to avoid conflicts of interest and accusations of partisanship. .

President Joe Biden speaks during a June 19 concert on the South Lawn of the White House on June 13, 2023 in Washington, DCGetty Images/Alex Wong

Given this, could there be other evidence that the White House or Biden intervened or had some degree of oversight in the investigation?

The indictment provides no evidence of White House involvement, with the 49-page document making no reference to interactions with the White House or the President’s Office.

While we don’t know how much Biden might have swayed the DOJ in its behind-the-scenes decision-making, or if he had any say in any of the decisions relating to Trump’s prosecution on those federal charges, there seems little reason to believe that Biden was directly involved.

Mark Osler, a former federal prosecutor and now a professor at St. Thomas University School of Law, told Newsweek that the White House’s distance from the DOJ investigation was deliberate and would set a “historic precedent.” if it had not been so. .

“Unlike the Trump administration, and probably in an effort to distinguish itself from the Trump administration, the Biden White House was careful to leave this kind of discretionary decision-making in the sole hands of the DOJ,” Osler said.

“If President Biden were to actually order President Trump to be indicted, it would not only be a break from historical precedent, but his own practice.”

Another former prosecutor, Peter Zeidenberg, now a partner at Arent Fox LLP, went even further, telling Newsweek the notion of Biden’s involvement was “nonsense.”

“POTUS would have had no involvement, or even knowledge, of what was going on in this investigation,” Zeidenberg said. “He was deliberately isolated from it. Garland wouldn’t even have known all of the details. I can say with great confidence that Biden had no role in the decision to indict Trump, nor was he at the aware of any non-public information regarding the case.”

It’s possible (or even likely) that the White House had some knowledge of the investigation or some other knowledge of Trump’s impending indictment. However, the case has several folds of independence between it, both from the United States Attorney General’s office and Jack Smith’s special counsel, and the fact remains that it was the decision of the grand jury of indict Trump, not Biden.

Even if the White House or Biden had knowledge of the cases, this assessment is speculative and does not meaningfully infer a degree of involvement.

Steps taken to ensure independence distance even those associated with the case (like Garland) from direct involvement in the investigation, let alone the President (whose independence from Garland resisted Already). At present, there is simply no compelling evidence to support the argument that Trump’s indictment is led by Biden and the accusations appear to be little more than comments and political rhetoric.

Newsweek contacted the DOJ, the White House and McCarthy’s representatives via email for comment.

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