Scratch another undoable item off Merrick Garland’s bucket list.
He can forget prosecuting Donald Trump for taking presidential records with him when he departed the White House. It turns out the attorney general’s boss, Joe Biden, did the same thing when he departed the Obama administration. Classified documents were stashed inside a closet in a private office that he used in the years before he became president.
Glaring hypocrisy aside, it would be difficult to justify criminally charging one president while turning a blind eye to the other. Legally, it would backfire. Politically, it would be poisonous.
Monday’s revelation of Biden’s classified documents blew a cannon hole in any potential case against Trump. If Garland is foolish enough to proceed anyway, the former president could assert selective prosecution as an affirmative defense. No one else has had his home raided by the FBI or faced criminal indictment.
But more broadly, Trump’s lawyers would argue that the plague of wayward documents is a common occurrence during hasty presidential transitions. Outgoing presidents don’t personally pack up their own papers and belongings. The General Services Administration (GSA) pursuant to federal law performs this duty. Sorting millions of files in a short time frame is a recipe for mistakes, especially where personal papers have been commingled with official records. It is a staggering undertaking.
As I pointed out in a column last summer, during the last 60 years materials have been erroneously categorized and/or misplaced in nearly every administration. Transfers rarely run smoothly. That doesn’t mean a crime occurred, even where classified records end up in the wrong place. Disagreements over custody can be protracted but are usually resolved amicably.
So much of Garland’s case against Trump has been predicated on the allegedly classified nature of the documents found at Mar-a-Lago. But at its core, that’s an assumption that has not yet been litigated. Trump insists he declassified them before he departed office. If true, then this is little more than a dispute over custody of materials under the Presidential Records Act of 1978, which is civil and not criminal. The Act grants former presidents a right of access to presidential papers, as well as possession. It serves as the controlling statute, rendering the criminal laws cited by Garland in his search warrant irrelevant.
The proper remedy was for the attorney general to file a motion to compel enforcement of the original civil subpoena seeking records. Let an impartial judge resolve the conflict. Instead, Garland chose to ignore the language of the Presidential Records Act and raid Trump’s home under the guise of criminal codes that have no application. He snookered a magistrate into signing an overly broad general search warrant that is strictly prohibited by the Fourth Amendment.
In addition to the imbroglio over classified records, Garland’s warrant accused Trump of obstructing justice because he wasn’t as compliant as the FBI demanded. This is an exaggerated, if not silly, claim. One can bicker over whether Trump was fully cooperative or promptly forthcoming. But he was entitled to resist under the legal standard set by the Department of Justice a decade ago in a similar case involving former president Bill Clinton.
At the time, the DOJ adopted the position that a former president can keep whatever presidential records he wants and the government has no authority to seize them. This was a conclusion shared by the National Archives and a U.S. District Court in Washington D.C. As a result, Clinton was allowed to maintain possession of audiotapes that allegedly contained classified information. Ten years later, the established “Clinton standard” suddenly vanished overnight because the person in question was named Trump.
The case comparison shows that Garland defied both the Justice Department’s own legal interpretation of the law and previous court precedent to target Trump. The AG’s flagrant abuse of power bears the unmistakable stench of partisan politics, which has infected the attorney general’s corrupt tenure from the outset.
The news that Biden did the same thing as Trump was met with palpable chagrin in the mainstream media. Their dreams of Trump in an orange jumpsuit suddenly dissolved. Immediately, anchors and pundits alike downplayed the news, invented excuses for Biden, and strained at the belly to persuade their audiences that the two cases were materially different. They are not.
The most laughable effort came –predictably– from The New York Times. Their disingenuous coverage amounted to a presidential apology. While defending Biden for an innocuous mistake, the newspaper tried in vain to draw a distinction in the Trump matter. “In any case,” the reporters wrote, “the potential charges the FBI cited in the search warrant affidavit do not depend on whether intentionally mishandled documents were classified.” What? Sure they do. Did the reporters read the warrant? Better yet, did they even read their own story published five months earlier?
The front-page headline in the Times on August 13th read, “Files Seized From Trump Are Part Of Espionage Act Inquiry.” Citing the warrant, the first two sentences explained how the FBI was focused on the mishandling of classified document under the Espionage Act. Two of the three reporters in the byline were the same ones who penned the most recent apologia. Either their memories are short or they are members of Biden’s public relations team peddling dishonest accounts.
It should surprise no one that Biden and Garland concealed the disclosure of his classified documents from the public and congress for two long months. The material was uncovered on November 2, 2022, just as the attorney general was preparing to appoint a special counsel to investigate Trump. Covering up Biden’s mess conveniently avoided a negative story for Democrats in advance of the midterm elections.
There is an obvious pattern here. It is reminiscent of how the Biden White House and the FBI pressured social media platforms like Twitter to suppress and censor the Hunter Biden laptop story in the weeks before the 2020 presidential election. Burying it likely helped Biden prevail over Trump.
The president could not maintain his cloak of silence any longer. He was forced to come clean on Monday because Republicans regained control of the House, installed a Speaker over the weekend, and are about to launch a series of nettlesome investigations that would have lifted the veil of secrecy protecting his own classified documents scandal.
Last summer, Biden publicly castigated Trump as “totally irresponsible” for keeping classified documents at his Florida residence. It was a political cheap shot, to be sure. But those words will come back to haunt Joe and his sycophant attorney general.