The Biden Justice Department has a dilemma.
Up until January 9, 2023, when CBS News reported that President Joe Biden had a classified documents scandal of his own, you could have bet the ranch that DOJ was poised to indict former President Donald Trump for illegally retaining national-security intelligence at his Mar-a-Lago estate.
Prosecutors were getting their ducks in a row, taking the kind of steps that are only taken when the government is very serious about filing charges: appointing a special counsel, forcing former executive officials to testify before the grand jury despite potential privilege claims, aggressively litigating in the district and appellate courts to prevent Trump’s legal team from inhibiting their probe.
The discovery that Biden was also hoarding classified documents complicated matters immensely — not least for Biden himself, who had ripped Trump for his irresponsibility before checking his own glass house. Or, I should say, glass houses . . . and an office . . . and who knows where else. It turns out that Biden has lawlessly strewn classified documents in sundry personal locations, and has apparently been doing so since his years as a senator, so the felony violations may go back decades.
The Obama-Biden Justice Department had given former Secretary of State Hillary Clinton a pass in spite of her egregious misconduct in setting up a non-secure homebrew server system, recklessly transmitting classified information over it, and destroying thousands of government records even after she knew they were relevant to investigations.
That meant the Biden DOJ had minimal daylight to maintain that Trump should be charged even though Clinton wasn’t. That daylight closed when it turned out Biden, too, was a serial offender. And the public sense of an “everybody does it” farce was solidified when it soon emerged that former Vice President Mike Pence also illegally retained classified intelligence in his home — a revelation that came shortly after Pence ripped Biden for having done so.
Thus, DOJ’s dilemma: The Democratic base’s most fervent desire is to see charges brought against Trump. But as a practical matter, how could Attorney General Merrick Garland and his appointed special counsel, Jack Smith, rationalize charging the former president without charging the incumbent president and the former vice president?
Prosecutors appear to have an answer: Out with reckless mishandling of classified information, in with grand jury obstruction.
Ever since the Biden scandal came to light, the media-Democrat rhetoric has taken a decided turn. With Biden, and now Pence, having apparently committed the same criminal offense as Trump — namely, gross negligence in the mishandling of national defense intelligence — Biden and his apologists have countered that the conduct is actually very different. Their reasoning? They posit that Biden and, now, Pence have fully cooperated with investigators, while Trump fought and misled investigators for over a year-and-a-half.
In this, the commentariat is conflating the separate criminal-law issues of liability and culpability. All three men — Trump, Biden, and Pence — seem to have committed the same offense, i.e., they are all equally liable.
The fact that Trump has been combative while Biden and Pence have been cooperative means that Trump’s behavior is more culpable; but that is not a defense for Biden and Pence. It just means that, as in every case where multiple people commit the same crime, the conduct of some is worse than that of others. Relative culpability explains why some defendants are sentenced more severely than others; it doesn’t expunge anyone’s guilt.
But that is not how Biden’s DOJ appears to be playing it. Like the Biden and Pence camps, they are shifting their attention — and thus the public’s attention — to Trump’s obstructive conduct. What matters is not the illegal retention of classified documents, which we are expected to ignore because it was supposedly “inadvertent,” as Biden’s flacks put it (even though that is not a defense).
What now matters is Trump’s dodging of the investigators — the behavior that is said to distinguish him from Biden and Pence.
Media reports indicate that Special Counsel Smith has recently forced grand jury testimony from three Trump lawyers: M. Evan Corcoran, Christina Bobb and Alina Habba. Corcoran is the attorney who oversaw Trump’s surrendering of classified documents after the Justice Department issued a grand jury subpoena for them in spring 2022. Bobb, in her role as Trump’s documents custodian, signed a sworn statement — principally drafted by Corcoran — representing to the grand jury that a thorough search of Mar-a-Lago turned up only the approximately three dozen classified documents that she and Corcoran handed over to the FBI in June 2022.
Two months later, when the FBI searched Mar-a-Lago pursuant to a search warrant, they found about a hundred more classified documents. Thus, the Justice Department has argued, Trump misled and obstructed the grand jury investigation, which is a separate crime from illegally retaining classified documents.
Habba is representing Trump not on the Mar-a-Lago case but in New York Attorney General Tish James’s civil fraud suit against Trump and his real estate organization. In that capacity, though, she represented to a New York state court that, in May 2022, she had conducted painstaking searches of Trump’s files and private office, looking for documents that might be responsive to a subpoena issued by James. Since those are locations where Trump appears to have stored classified documents, Habba’s representations make her a material witness in connection with the Trump team’s response to the federal grand jury subpoena.
Bear in mind: To prove the crime of obstructing a grand jury, prosecutors need not show that laws pertaining to classified intelligence were broken, only that the grand jury and federal investigators were misled.
President Biden’s scandal makes it politically untenable to charge Trump with mishandling classified documents. So, as the special counsel continues digging, expect to hear a great deal about how terrible it is to obstruct a grand jury, and very little about how badly national-security is compromised by carelessness with top-secret intelligence.
Andrew C. McCarthy is a former federal prosecutor.