No one should envy Attorney General Merrick Garland. He now has another presidential scandal involving âmisplacedâ or otherwise purloined classified documents on his hands. Except this time, it involves President Joe Biden, the man who nominated Garland to be the nationâs chief law enforcement officer.
Naturally, many of Bidenâs political opponents are
drawing parallels
between the mountain of classified material that Donald Trump shipped to MarâaâLago and the two batches (and counting?) of classified material in Bidenâs possession outside of proper federal handling and storage channels. Bidenâs lawyers and the White House have said they notified the National Archives immediately when the documents were discovered.
The New York Timesâs Glenn Thrush essentially parroted the White Houseâs framing in his own coverage:
But the circumstances of the two cases appear strikingly different. Unlike Mr. Trump, who resisted returning the records stored at MarâaâLago and failed to fully comply with a subpoena, Mr. Bidenâs team appears to have acted swiftly and in accordance with the law, immediately summoning officials with the National Archives to retrieve the files,â Thrush wrote. âThe archives then alerted the Justice Department, according to the White House.
Yet both the White House and Thrush elided key issues.
Why were the materials at a Biden think tank and at his Delaware home long after he left office as Barack Obamaâs vice president? Who took the documents thereâBiden himself, Biden aides, both? How long were the documents in the two locations? Who else had access? Are we talking only about paper copies, or is digital media involved? Is there reason to believe that any material at either location is missing or was copied and removed from either location?
These are just some of the many questions needing answers. The man tasked with getting those answers is former Trump political appointee Robert K. Hur, who served U.S. Attorney for the District of Maryland between April 2018 and February 2021. His selection was announced by Garland on Thursday.
Hur has a deep
background
in national security and cybercrime criminal cases, including leading the prosecution of both former NSA contractor Harold Martin and former NSA employee Nghia Hoang Pho, each of whom was found guilty of taking home and retaining classified information. Hurâs experience in those cases will help him and Garland insulate themselves from charges that theyâre not taking the Biden case as seriously as Trumpâs.
The Trump and Biden classified document cases also highlight the double standard of treatment we see in such episodes.
If a runâofâtheâmill CIA, NSA, or FBI employee even accidentally takes home classified material, there will be consequences, possibly including termination.
Indeed, just the false accusation of giving classified material to the press can trigger a lifeâaltering prosecution for those so targeted, as former NSA Senior Intelligence Service member Tom Drake
discovered
. In 2011, the government charged Drake with ten felony counts of mishandling classified information; later, all ten of those counts were dropped.
In this case, Biden likely enjoys a shield from indictment, much less prosecution, due to the Department of Justiceâs Nixonâera
legal opinion
that a sitting president cannot be indicted or prosecuted while in office. The Office of Legal Counselâs theory has never been tested in federal court, and likely never will be, as Mr. Hur â like every other Justice Department attorney â is bound to abide by OLCâs opinions.
As a former chief executive, Mr. Trump enjoys no such legal shield â but he does have the financial resources to enable him to hire criminal defense attorneys of a caliber that no federal civil servant facing similar charges would ever be able to afford. He also has allies inside and outside of Congress continuing to claim â despite abundant evidence to the contrary â that his purloined classified document escapades were mere indiscretions, not violations of federal law or a threat to classified sources and methods.
What Biden will not be able to easily evade is a House GOP conference intent on investigating every aspect of his conduct in the latest âDocumentgateâ imbroglio. Very soon, the subpoenas to the Justice Department and National Archives will flow out of one or more GOPâcontrolled House committees.
Itâs going to be a long year for Merrick Garland.
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This article originally appeared in the Cato at Liberty blog and is reprinted with kind permission from the Cato Institute.
