FBI agents are rummaging through President Joe Biden’s private home. Republicans are on the attack. Democrats are reluctant to defend him. Lawyers are being hired. Witnesses are being interviewed. The press secretary is being pelted with questions she cannot or will not answer.
But amid the familiar soundtrack of scandal in Washington, the most significant cost to the president may be the opportunity cost: Even if nothing comes of the new special counsel investigation into his team’s mishandling of classified documents, politically it has effectively let former President Donald Trump off the hook for hoarding secret papers.
The cases are markedly different in their particulars, as has been noted repeatedly. Biden has cooperated with authorities, inviting them to search his home, while Trump defied efforts to recover documents even after being subpoenaed, prompting a judge to issue a search warrant. But they are similar enough that as a practical matter, Democrats can no longer use the issue against Trump politically, and investigators may have a harder time prosecuting him criminally.
“I feel it’s likely that when the probe is done, the Biden case will wind up being one of unintended mistakes — carelessness but not willful defiance of the rules or law,” said David Axelrod, a former senior adviser to President Barack Obama. “The Trump case is much different and more serious. But in the court of public opinion, those lines may now be blurred.”
They will be even blurrier if additional drip-drip-drip revelations from Biden’s case produce more damaging information. Democratic allies are increasingly frustrated by a White House that hid the discovery of secret documents from the public for two months and, even once it was reported, provided only partial information, then declared the search complete, only to have more papers turn up.
The public perception that everyone does it will only be fueled by the latest discovery of classified documents at the Indiana home of former Vice President Mike Pence. Pence asked a lawyer to look through files out of an abundance of caution, CNN reported Tuesday, and once the papers were found promptly turned them over to authorities.
No one has been happier about the developments than Trump, who predictably has used them to turn attention away from his own mishandling of documents and accuse Democrats and the government of targeting him out of partisan animus. In a fundraising solicitation on Tuesday, he told supporters that he was “being persecuted” by a “Trump-deranged” special prosecutor while Biden “is being given white-glove treatment.”
“Biden lied to the American people and weaponised the Justice Department — or as I call it, the Injustice Department — to go after me for the very crime he actually committed,” Trump said in a video. “The difference is that while I did everything right — I did nothing wrong — Biden did everything wrong.”
At the same time, Republicans who have been uncomfortable with questions about the former president have rushed to suggest an equivalence — or even to assert that Biden’s conduct was worse than Trump’s.
“They’re very similar, and yet there are some differences,” Rep. Nancy Mace, R-S.C., said on “Meet the Press” on NBC on Sunday. “They’re similar in that they both wrongly took classified information away from the National Archives” and secure facilities, she said. But the difference is that since Biden left office six years ago, “these documents were hidden; nobody knew about them.”
A new poll indicated that most Americans think both Trump and Biden did something wrong. Seventy-seven percent of those surveyed by ABC News and Ipsos said Trump acted inappropriately in handling classified documents, while 64% indicated that Biden has.
Many Americans do make a distinction on the degree of the wrongdoing: 43% said Trump’s conduct was a “more serious concern” compared with 20% who said Biden’s was more serious. But 30% found them to be equally serious.
Attorney General Merrick Garland has appointed separate special counsels to investigate the Trump and Biden cases, an effort to insulate them from each other and, in theory, at least, from politics. But the very act of naming a special counsel for each suggests a certain parallel in terms of public messaging.
Moreover, at the end of the day, Garland will still make the final call on what to do about both cases, inviting attacks for a double standard if he were to issue charges in one instance and not the other. That becomes even more complicated since Justice Department policy set under previous administrations holds that a sitting president cannot be indicted even if there is proof of criminal wrongdoing.
Garland, a former federal appeals judge who arrived at his current post with a bipartisan reputation for independence and rectitude, now finds himself insisting to skeptics that he can oversee both inquiries evenhandedly, even though one involves his boss and the other involves the man running against his boss in next year’s presidential election.
“The role of the Justice Department is to apply the facts and the law and reach appropriate decisions in a nonpartisan and neutral way,” he told reporters this week. “That is what we’ve done in each of these cases.”
That, at least, is what Biden’s lawyers are hoping. The crux of their legal strategy is to make clear that they are doing the opposite of what Trump’s lawyers did. They promptly contacted authorities after the documents were found and have sought to work collaboratively to find any other stray papers.
Attorney General Merrick Garland has appointed a special counsel to investigate the presence of documents with classified markings found at President Joe Biden’s home in Wilmington, Delaware, and at an office in Washington.@AP explains. pic.twitter.com/gzRDUzbJ3C
— The Associated Press (@AP) January 13, 2023
That cost them in the public sphere because they concluded that it would be more advantageous not to publicly disclose the discoveries so as not to antagonise Justice Department officials examining the situation and ultimately persuade them that the incident was nothing more than a good-faith mistake. So far as is known, the president’s lawyers, unlike Trump’s team, have not resisted any request from investigators or attacked the prosecutors in charge.
In terms of legal adjudication, the fact that Biden is now defending himself on his handling of documents in theory has no direct bearing on whether Trump should be charged for his actions. In reality, however, prosecutors are sensitive to public perception. In fact, that concern is the reason Garland appointed special counsels to handle each of these investigations, even though he said he believed his department could have managed them fairly.
Andrew Weissmann, who was a top deputy to special counsel Robert Mueller during the investigation into Russian interference in the 2016 campaign on Trump’s behalf, said public perception should not have an effect on whether a case should be brought against the former president.
“Drawing relevant factual distinctions is a core function at DOJ,” he said. “But there is no denying its relevance as a political matter. Public acceptance of the legitimacy of bringing the first criminal case ever against a former US president is going to be critical.”
Stanley Brand, a prominent Washington lawyer who previously served as general counsel to the House of Representatives, said Trump’s legal team could seek to challenge a prosecution by claiming political bias.
“There is also the issue of selective prosecution: treating similar cases differently based on a suspect classification or criteria,” Brand said. Referring to Garland, he added, “I would allege that as an appointee of the president, he is conflicted — a conflict that can’t be resolved by appointment of a special counsel since under the DOJ regulation, he retains ultimate responsibility.”
That does not mean a judge would agree with Trump’s argument. “Even if such claims do not ultimately prevail in court,” Brand said, “they complicate the AG’s decision, and he would have to weigh the likelihood of prolonged and complicated pretrial litigation of such claims.”
For the moment, though, it is the court of public opinion that the cases are being waged in, and Republicans and Democrats agree that Trump has caught a break. After all the furor over Trump’s brazen resistance to returning documents — and his insistence that he could declassify them simply by thinking about it — the attention has turned to Biden.
It is no longer a straightforward story of a former president who seems to have intentionally taken hundreds of documents that were not his to take whether or not they were declassified, then refused for more than a year to give them all back, even under orders from a judge. Instead, it is one more chapter in the whataboutism that Trump and his allies have used time and again to justify or defend his actions.
Tim Miller, a longtime Republican strategist who became a leading critic of the former president, said there is a “stark contrast” between how Trump handled the classified documents issue and how Biden did.
But as a political matter, he said, the case plays into Trump’s hands.
“Trump has a championship-level ability to muddy the waters,” Miller said, “and create false equivalencies between his own illicit behavior and other people’s more mundane mistakes.”