The latest news of additional items with classified markings being recovered from President Joe Biden’s house means he just has to be more criminally liable than he was before, right?
Wrong. And here’s why.
Though we’ll want to learn more about the Biden documents and their circumstances, the president’s situation to date hasn’t moved into the criminal realm — at least not based on past practice at the Department of Justice. The remarkable fact of the FBI searching a sitting president’s home, as happened on Friday, does nothing to change that. Indeed, that Biden invited the search of his residence is the latest example of his continuing cooperation with the government, further distinguishing his situation from the obstructive behavior of Donald Trump, who should fear indictment any day in the investigation overseen by special counsel Jack Smith.
Recall that one of the potential charges that Trump could face is unauthorized possession of national defense information under Title 18 of the United States Code, section 793(e). Even a quick look at that law shows the difference between Trump and Biden, because it can be used against someone who “willfully retains” such material “and fails to deliver it to the officer or employee of the United States entitled to receive it.” Trump’s apparent deception when it comes to documents at Mar-a-Lago that the government requested — compared to Biden’s alerting the authorities in the first place — puts the two men, as I wrote previously, on different legal planets.
So as my colleague Steve Benen pointed out, Sen. Joe Manchin, a conservative Democrat, was legally mistaken to cast the Biden and Trump situations on NBC’s “Meet the Press” as “basically” the same. On the contrary, the differences are plain.
But just because Biden isn’t Trump, does that mean he’s free and clear? Of course not. Yet, comparing Biden’s situation to other cases that the DOJ has refused to bring suggests that, absent damning facts against him that we don’t know about yet, the president isn’t in real legal danger — or shouldn’t be. As a recent piece in Just Security observed, the refusal to charge former Attorney General Alberto Gonzales should lead to the same conclusion for Biden. Gonzales, who served under President George W. Bush, was found to have written notes about classified documents, stored them improperly, and was seemingly cooperative with the investigation into his conduct.
Likewise, the DOJ’s decision not to charge former Secretary of State Hillary Clinton for using private email servers still shows that Biden won't likely be charged, based on what we know — assuming the government abides by past precedent. As then-FBI Director James Comey said in 2016 when explaining why the DOJ didn't charge Clinton and how her case compared to others:
All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.
Nor do we see those things in Biden's case, even following the latest news from Delaware. But we should keep our eyes open to the possibility. There’s no doubt that special counsel Robert Hur will be doing so, however legally dubious Hur’s appointment by Attorney General Merrick Garland may have been, given the apparent lack of criminality in Biden’s case.
Finally, for those focused on the real-world legal consequences of both the Biden and Trump matters, it's important to remember that a strangely important fact could be their respective occupations. As we were reminded during the Trump-era special counsel Robert Mueller’s investigation, the DOJ has a policy against indicting sitting presidents. So even assuming, very hypothetically, that Biden were as guilty as Trump, then that policy would bar charging Biden while he’s in office, a reality that no doubt motivates Trump as he seeks to retake the White House in 2024. If Biden runs for re-election, however, it's less likely that he'll be doing so to stay out of prison.
