Special counsel Robert Hur’s decision not to prosecute President Joe Biden for mishandling classified documents is grounded on weak arguments.
Former President Donald Trump is rightly being prosecuted, accused of withholding more than two dozen highly classified documents and obstructing lawful government efforts to retrieve them. In significant part, the rationale for special counsel Jack Smith’s prosecution of Trump is the public interest in protecting the means of how the nation and its allies gather critical intelligence against foreign adversaries. And the public interest of showing that just because someone is a former president, they don’t get a free pass on the law.
Nor should Biden get a pass just because he’s president.
True, the coming efforts to whitewash Hur’s report in Biden’s favor will surely provide us with new masterpieces of faux intellects hiding factual biases. These will join to oft-absurd previous efforts, including by purported “disinformation” experts, to claim that Biden’s and Trump’s classified documents cases are “apples and oranges.” Instead, the balance of evidence against Biden, as listed in Hur’s report, strongly weighs in favor of prosecution.
Much is being made of Hur’s observation that “at trial, Mr. Biden would likely present himself to a jury, as he did during our interview with him, as a sympathetic, well-meaning elderly man with a poor memory. Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him — by then a former president well into his eighties — of a serious felony that requires a mental state of willfulness.”
OK, perhaps a jury would find Biden a likable and sympathetic character lacking the state of mind to carry out the crimes he is accused of. But were prosecutors to rely upon that possibility, even that likelihood, in all charging decisions involving serious crimes such as those entailed here, many mafia bosses, popular celebrities, and elderly criminals would also avoid being charged. That’s not what happens. Indeed, Smith could have made the same arguments toward Trump, considering the former TV personality’s rambunctious charisma and his Florida classified documents trial location. There is a reason we have jury selections, and this is one. There’s also a reason that prosecutors are supposed to prosecute when the evidence and facts prevail in favor of prosecution.
In that regard, I’d also argue Hur is badly wrong when he claims that the public interest would not be served by a prosecution with the evidence on hand. Again, the evidence is strong that Biden mishandled classified information. He retained numerous classified documents, including those at the top secret-SCI level. These documents are classified as such because they are deemed at risk of causing “exceptionally grave” harm to the nation if released capriciously.
Further, when it comes to the guilty mind that the prosecution would need to prove, Hur has a 2017 recording in which Biden tells his ghostwriter that he had “just found all the classified stuff downstairs.” Why didn’t Biden hand those documents back to the government then? Why, instead, did he use them, as Hur’s report extensively documents, to provide their context and, in some cases, their content to his ghostwriter? Why did he throw them in a poorly guarded garage? I guarantee you that many other prosecutors around the nation will look at that evidence and say, “This is mens rea gold!”
Top line: There is a preeminent public interest both in the protection of highly classified information and in the public perception of blind but commensurate justice. Hur has suggested to lower-ranking government officials that the more high profile one is, the more likely to avoid prosecution they will be. And Trump, even though his classified document conduct is more serious (Trump is accused of keeping far more of the most highly classified documents and of going to far greater efforts to withhold them from government scrutiny), seems to be the only presidential candidate out of these two to be held to higher standards of law. That credible perception is bad for the nation.
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That said, even if Biden has successfully skated over very thin legal ice, Hur’s report risks his collapse through the political ice.
While the political ramifications of Biden’s classified documents saga were always going to be significant, they are far more so now. With Biden overtly labeled as senile and simultaneously set to be perceived by many as having skirted a just prosecution, Trump has found powerful new lines of attack. He can present the president as mentally unfit for a second term in office and himself as suffering a double standard of justice. Whatever independent-minded voters make of Trump’s claims, at the margin, those claims will surely benefit him.
