I hinted at this point in my post yesterday, and the more I think about it, the more I think there's something to it. It seems like the DOJ believes it has an open-and-shut case against former President Donald Trump over his egregious mishandling of a large quantity of classified materials recovered during the FBI's search of Mar-a-Lago last year. I'm no legal expert, but on the surface, that would make sense. Unless he'd specifically declassified the documents in question while he was still president -- and not just claiming retrospectively that he'd done so in his head -- it looks like he was not entitled to have that cache in his possession, in an unsecured setting. He'd fought the National Archives over the documents for an extended period of time, and one of his lawyers at one point falsely attested that everything had been returned. Was this reckless and irresponsible? Yes. Was it unlawful? Very possibly. Was it prosecutable? That's where things get thornier.
Let's say we're willing to stipulate that what he did was both clear misconduct and clear criminality (many won't be willing to stipulate one or both, but for the sake of argument let's do so here). The decision to charge and prosecute a former president, and current presidential candidate, is a weighty one that would involve unusually sensitive judgment calls. Could versus should. As I also mentioned yesterday, Secretary of State Hillary Clinton was infamously not charged for her appalling gerry-rigged private email server that by definition mishandled and almost certainly compromised an astounding amount of sensitive official correspondence, including a very large trove of material classified at the highest levels. The did so intentionally, with malice aforethought. She did so for her own personal convenience and political control, quite possibly motivated by the appeal of limiting what could be produced in a search under FOIA. She and her team destroyed relevant evidence when they realized there might be a problem. She lied about all of it, endlessly. And she was never president, and therefore never had the authority to declassify any of it. If she wasn't indicted and prosecuted under that set of facts, how would it look to throw the book at Trump for what he did?
As we sometimes like to say, raising the Hillary Clinton scandal in this context is not 'whataboutism.' It's 'aboutism.' It's possible that Special Counsel Jack Smith and/or Attorney General Merrick Garland were on the path to shrugging off the Clinton example and coming after Trump anyway. Hasn't that potential choice just become much more untenable, now that the sitting president has his own classified materials problem on his hands? Others are thinking the same thing, in light of the inescapable optics and political dynamics at play. Conservative writer and longtime federal prosecutor Andy McCarthy, who has been sharply critical of Trump on a number of fronts, suggests charging Trump has become significantly less likely, in light of the new circumstances:
Let’s be clear: Despite Donald Trump’s inevitable inability to contain his glee over the good fortune this Biden misadventure represents for him, what Biden appears to have done — based on the little we know at this early stage — pales in comparison to Trump’s classified-information transgressions...the challenge of prosecuting Trump in this matter has never been legal. I’ve intuited that the Justice Department is confident it already has a slam-dunk case and is just waiting for the right to time to launch — i.e., that the prosecution is a matter of when, not if. No, the challenge here for the DOJ is political. Long before the latest Biden revelation, Trump’s best shot at not being charged was the Hillary Clinton precedent. Clinton’s misconduct was far more comparable to Trump’s than Biden’s appears to be...Because Clinton was not prosecuted, the Justice Department has had only the thinnest margin of error in the Mar-a-Lago investigation. Biden wants to be reelected in 2024. He knows that among the issues most apt to damage him in the 2024 campaign is the partisan weaponization of federal law enforcement — the perception that, for roughly similar conduct, Democrats are given a pass while Republicans have the book thrown at them.
That is why his attorney general, Merrick Garland, appointed a special counsel to handle the DOJ’s investigations of Trump; the administration wants to put as much distance as it can between the president and any decision to charge the former president who is running against him...Now, however, we add into the mix Biden’s seeming commission of the same generic offense for which Trump is under investigation — different in degree of seriousness, sure, but not really different in kind. With a thin margin of error, this is not the sort of thing Biden’s prosecutors can afford...Now, to all this must be added the assurance that, if Trump is charged, any failure to charge Biden will become a 2024 campaign issue — and even though Justice Department guidance does not permit indictment of a sitting president, Republican candidates will be pressured by the pro-Trump faction of the GOP base to commit to charging Biden. Perhaps even more damaging for Biden, the location in which he was unlawfully retaining classified documents will call more unwanted attention to the millions of dollars his family hauled in from Chinese-regime operatives.
Now that Team Biden has splashed into a classified documents scandal of its own, it seems likely to me that Trump will be let off the hook entirely. The one thing that could be counted on to drive wavering Republicans back into his corner in this matter has come to pass. They’ve been handed a “libs do it too” tu quoque on a silver platter. I can hear Never Trumpers and Democrats screaming at me in the comments: “The two scandals are totally different! The facts of what Biden did aren’t even a scandal!” Perhaps. We’ll see what the reporting turns up...do you trust Americans to make discerning judgments about that? It’s hard enough in 2023 for political junkies to hear themselves think over the din of partisan noise. Imagine the average voter who follows the news casually trying to navigate their way to understanding the similarities and differences between the two cases. Charging Trump and securing a conviction that would be respected by a meaningful share of Republicans was always going to be a high wall for special counsel Jack Smith and the DOJ to scale. Unless Biden is also charged, the wall just got 10 feet higher.
There are plenty of meaningful differences between the two sets of facts, he writes, echoing an observation we offered yesterday. But the fundamental similarities are obvious, basic, and easy to grasp. That's Biden's problem, and possibly Trump's salvation, in this realm. Catoggio's upshot:
We all understand, I trust, that the task of convincing Americans that Trump has committed some singular wrong that requires prosecution is considerably harder than it was even 24 hours ago. In a society where everyone gets their political news a la carte, prepared precisely to their taste, it’s all too easy to whip up a dish in which Trump and Biden are guilty of the same thing. I don’t know that Merrick Garland will want to move forward in those circumstances, given what doing so would do to institutional trust in the DOJ.
He also notes the political point that none of this was revealed until safely after the midterms, even though it was all unfolding in the days leading up to that national election: "The president had just been implicated in a dereliction of duty involving national security. At first blush, that dereliction looks minor. It was probably negligent, not criminal. But given all the scrutiny of how Trump and Hillary Clinton mishandled classified information, it’s not unreasonable to think Biden should have been transparent and let his constituents know that he too had been slippery with sensitive material. He chose to wait until after a momentous election that decided which party would govern the new Congress to share the news. Go figure." Yeah, go figure. If Garland et al want to crush much of the public's wavering confidence in our system, they will charge Trump. My guess is they will not at this point, at least on this front. That said, charging him could cause even reluctant GOP voters who currently looking to move on from Trump to rally around him once again. If the Democrats are desperate to run against Trump again in 2024, which I think they are, maybe an indictment would actually help him -- and therefore them. Are you cynical enough to believe Garland and company would be that political and partisan in their legal calculations? I'd still like to think not. But I'm not entirely sure, and others would be less unsure. Welcome to America, 2023.