“Really?” Poppy Harlow exclaimed. Yes, really. Theoretically, the Department of Justice could still charge Donald Trump over his alleged criminal violations in keeping classified documents.

In reality, though, Merrick Garland would have to explain why he’s not charging Joe Biden for the same crimes, as CNN legal analyst John Miller explains. They may not be the same situation, but it’s close enough to make it awkward:

DON LEMON: I said that last night, it puts Merrick Garland in a very odd position. Did they know this was coming? This was November? I said, well, you know, look, I’m just asking here. Maybe Merrick Garland didn’t. Everyone’s wondering why he didn’t act, did he know this was coming?

JOHN MILLER: The White House knows how to get news out fast and they know how to get news out slow. The idea that we went through the contretemps of last week and once that was all clear, you know, they announced this probably, you know, speaks for itself in terms of analysis.

KAITLAN COLLINS: I’m so interested that you said it helps Trump because I was talking to people close to his legal team yesterday and they were saying this is a huge gift to them because they believe, you know, politically speaking, of course, the obstruction is obviously the big part of the Trump story. He resisted for so long, turning them over. But they believe it helps make their argument that it’s pretty easy actually, to innocently and mistakenly perhaps take classified documents. Does that actually hold up in court?

JOHN MILLER: So it doesn’t hold up in logic.

KAITLAN COLLINS: But does it hold up in court?

JOHN MILLER: Let alone court. Sure, it holds up in court as an argument. But, you know, the law is clear on on both. It’s just, you know, the balancing act of you’ve got a special prosecutor, you know, Jack Smith, who’s going to is going to make a recommendation, and then the attorney general is going to have to make a decision. And these developments have put him in a very awkward place in terms of the decision-making.

The two situations aren’t identical, at least at the moment, but they don’t appear to be different enough to matter politically. Miller also notes that there is an obstruction charge that could be brought against Trump, an element that doesn’t appear to be present in this instance, at least not yet. To charge obstruction without an underlying criminal charge on the document retention itself would be even more awkward, however.

Another CNN legal analyst, former federal prosecutor Katie Cherkasky, points out more explicitly the difference on obstruction. However, she also notes that the underlying crimes are too similar to ignore for prosecutors, and perhaps for a court as well:

CHERKASKY: I think in terms again of the obstruction, that is not present in this case. But the mishandling of classified documents — if that is an offense that is being looked at, that happens at the time the documents are removed, potentially, if they’re done so under inappropriate circumstances. So that part of it is more nuanced, and legally I think those analyses are much more similar. …

I think that Merrick Garland is in a difficult position. … Ultimately, I think there’s going to need to be a special counsel appointed to look into whether this is a criminal offense or whether this is something that is prosecutable.

The problem for the crowd — mainly in the media — screeching that Trump’s obstruction makes this different is the precedent set by the DoJ for Hillary Clinton. Her use of an unauthorized home-brew e-mail system resulted in the retention of thousands of classified documents/data for up to six years or more. Clinton’s motive for employing this system for her official e-mails was clearly to obstruct Congressional review of her communications at State. Furthermore, she directed underlings to strip classified markings from documents before transmitting them, which is itself illegal and demonstrative of obstruction. When confronted, Clinton refused to grant access to the e-mail server, and then erased half of the 65,000-plus emails before granting access to the FBI, claiming that they were personal in nature. That also is a demonstratively obstructive act.  And yet the DoJ refused to charge or prosecute Clinton, claiming some fig leaf of “intent” that doesn’t exist anywhere in statute and that her behavior completely contradicted anyway.

So Merrick Garland’s decision was already awkward even before this latest development belatedly emerged. Now we have a sitting president who as VP apparently did exactly what Trump is being accused of doing, and without the authority to commit even a pretense of declassification. If Garland presses forward on a prosecution against a Republican candidate while taking a pass on two Democrats for the same crime, it’s going to look very, very political. And after that, it will be Katy-bar-the-door in the next Republican administration for political prosecutions, and that next Republican administration may be a lot closer than Biden and the media think.

Update: CNN reports that the classified material related to Ukraine — which is where Hunter was cutting deals at the time:

Among the classified documents from Joe Biden’s time as vice president discovered in a private office last fall are US intelligence memos and briefing materials that covered topics including Ukraine, Iran and the United Kingdom, according to a source familiar with the matter.

A total of 10 documents with classification markings were found last year in Biden’s private academic office and they were dated between 2013 and 2016, according to the source.

Hmmmmm. That doesn’t sound like a coincidence.

Also, the latest episode of The Ed Morrissey Show podcast is now up! Today’s show features:

• Voters got a good read on the next two years this week with Republicans taking over the House and Ron DeSantis claiming his turf on the national stage. Andrew Malcolm and I discuss the contrasts and the commonalities.
• We also take a look at the collapse of the Russian-interference panic at the Washington Post.
• Wyoming radio host Jeff Wallack of WyomingIsRight.com joins us to discuss his upcoming interview with Donald Trump as well as his view of the 2024 campaign.
• Plus, my latest editorial for SRN News/Tonwhall Commentary!
  

The Ed Morrissey Show is now a fully downloadable and streamable show at  Spotify, Apple Podcasts, the TEMS Podcast YouTube channel, and on Rumble and our own in-house portal at the #TEMS page!