Really? They don’t seem terribly keen on acknowledging the obvious in public. Even after the new revelations that Joe Biden did everything but hold a garage sale while illegally keeping highly classified documents next to his Corvette, Democrats and their media allies kept flogging the narrative that Donald Trump’s mishandling and purloining of documents constituted a far graver crisis.
Privately, though, reality began to dawn on them after Merrick Garland’s appointment of a special counsel yesterday. Politico sticks to the narrative too, but reports on the disillusionment spreading rapidly if still quietly through Democrat ranks:
The two cases are markedly different. But some Democrats privately concede that their coexistence gives the president’s critics a chance to denounce him as negligent, hypocritical or careless right at a time when things were moving Biden’s way.
“I think it takes the whole Trump scandal off the table,” said one Democratic Party operative, granted anonymity to speak freely about the delicate situation unfolding around the president.
“Most polls show that voters don’t give a fuck about this stuff,” they added. “But the media momentum is real.”
Elected Democrats have largely rallied behind the president, with House Minority Leader Hakeem Jeffries telling reporters that he has “full faith and credit in President Biden” on the documents matter. Biden, Jeffries told reporters, “is doing everything to take appropriate steps and how to move forward in a responsible fashion.”
But Capitol Hill Democrats have called for briefings and more information surrounding the former vice president’s document storage. And some have started to privately worry that the ordeal will distract from their collective priorities and could begin to help validate GOP investigations they dismiss as politically motivated headaches.
The two cases are not that much “markedly different,” and not all of the differences benefit Biden either. Both cases consist of the same underlying crime — violations of the Espionage Act by unauthorized possession and unsecure storage of classified material. As we emphasized ad nauseam during the Hillary Clinton case, regular government employees and contractors who did what these three politicians did would have gotten prosecuted and ruined over it.
Trump did make matters worse for himself by fighting for control over the material, putting him at risk for an obstruction charge. The FBI raid came at the end of several months of fighting not just for the material but for a full and honest accounting of it. However, it was also all at one location, and that location at least had some Secret Service security (still insufficient for storage of classified material). Biden’s retained documents were stored completely out in the open at the Penn Center, and then in the least secure part of his house in Wilmington — his garage. Furthermore, Biden had these documents for six years after he left office as VP, and it’s not even clear that he had a need to access the materials in the first place connected to his position. Presidents have plenary access to classified material, but that’s not necessarily the case for VPs.
And let’s not forget that Trump disputes the classification status of the materials he retained — rightly or wrongly. Presidents also have plenary authority to declassify material, although that has to involve more than just thinking them into declassified status. Joe Biden has essentially already admitted to the crime, as Andrew McCarthy explained late last night:
The reaction to the special counsel appointment by Richard Sauber, the lawyer Biden has brought into the White House to help deal with investigations, was remarkable. He said the president was confident that the special counsel investigation would find that the documents in question were “inadvertently misplaced.”
That’s not a defense to a charge of mishandling classified information. It is tantamount to an admission of guilt. For conviction, federal law requires prosecutors to establish that the defendant was grossly negligent. There is no need to prove that an accused was trying to harm the United States; just that he was trusted with classified information and carelessly flouted the standards for safeguarding it.
So it appears that Biden is not challenging that the documents were classified, that the locations in which he kept them were not authorized, and that he failed to keep track of them. Why have an investigation when all the elements of the offense are established?
No doubt because sufficiency of the evidence is only one of the two questions prosecutors must ask before charging someone with a crime. The second question is whether, even if the person is technically guilty, an indictment is in the public interest.
It appears, then, that Biden’s approach will be to avoid discussing the slam-dunk evidence and spin the equities of prosecutorial discretion to his advantage. He’ll say that the number of documents was comparatively small, that he self-reported the violation as soon as it was discovered, that he immediately turned the documents over to the national archives, and that he cooperated fully with the investigation.
Again, this gets back to the Hillary Clinton precedent, likely the first time that “intent” had ever been the fulcrum of a prosecution decision in these statutes. Biden probably hoped that Garland would do what Loretta Lynch and James Comey did for Clinton in creating a requirement for intent that has no statutory basis, and decline to pursue the case. Garland punted it instead to Robert Hur after US Attorney John Lausch recognized that the elements of a criminal prosecution were in place.
Finally, what about the “media momentum”? Gloomy Democrats would have to be pretty spoiled in the media sense to be disappointed in the way many media outlets circled the wagons yesterday. Every single report insisted on emphasizing that Biden’s alleged crimes didn’t compare to Trump’s, and highlighted the political angles rather than the legal stupidity and potential corruption aspects of Biden’s actions in holding these classified documents illegally for six years. There were a few exceptions — CNN’s coverage yesterday was more detached — but even today, most of the coverage of Biden’s scandal is of the Republicans pounce!® variety, this piece by Politico included.
Correction: The name of the US Attorney who recommended a special counsel is John Lausch, not James Lausch. My apologies for the error, which has been corrected above.