Biden’s priceless legal and political gift to Trump
Tom Rogan
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President Joe Biden has thrown former President Donald Trump legal and political lifelines with his own classified documents scandal. Trump is facing charges of obstruction of justice and mishandling of classified documents after his possible repeated resistance to requests from the National Archives to return classified documents in his possession.
According to CBS News, we’ve now learned that Biden’s attorneys found around 10 classified U.S. government documents in a Biden-linked think tank on Nov. 2. CNN reports that some of these documents were classified as top secret and bore “sensitive compartmented information” control caveats. Documents in Trump’s possession also had SCI control caveats.
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That matters because SCI caveats entail a connection to highly sensitive U.S. government sources and methods of gathering intelligence. Efforts to play down these Trump-Biden document similarities tellingly evade the SCI classification concern. That’s because the preeminent basis of classification laws is the protection of national security. And if Trump’s mishandling of SCI materials represented a threat to national security, well, so did Biden’s. Who might have seen the documents over the 2,112 days between the end of Biden’s tenure as vice president and Biden becoming president?
Unlike with Trump’s delays and potential deception over returning documents in his possession, Biden’s attorneys say they immediately returned the documents they found to the National Archives. While that is an important legal distinction on paper, it is undermined by other factors. Notably, the White House did not immediately disclose the discovery to the public, even though it was notified five or six days prior to the Nov. 8 midterm elections. Such a notification was obviously the right thing to do, even if it would not have been politically adept. Instead, Biden chose to accrue the political benefits of silence over the national interest of presidential probity.
This decision will significantly weaken the perceived apolitical credibility of any future decision by the Justice Department to charge Trump. The Justice Department must always decide whether proceeding with charges is in the public interest. Biden has greatly undermined that argument via his own classified document problems and associated hiding of that scandal from the public.
This feeds credibility to the prospective narrative that Trump is being unfairly targeted by political enemies. It doesn’t matter whether this is factually true or not — it matters that a very large segment of the public might believe as much and thus sense the politicization of law enforcement. And that sense is anathema to constitutional norms and good government. Biden must have known this risk. That he instead chose to avoid a midterm election complication only strengthens Trump’s politicization argument.
Trump’s defense team will thus have a field day with Biden’s scandal if their client ever faces trial. Trump’s defense lawyers would use Biden’s experience to suggest that the mishandling of classified documents by former presidents is, while unfortunate, neither a criminal nor exceptional circumstance. They would also likely present Biden’s failure to disclose his own scandal before the midterm elections and the absence of Biden’s own prosecution as evidence of a politically motivated prosecution against Trump.
Put simply, Biden has thrown the former president a very valuable legal and political lifeline.
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