IE 11 is not supported. For an optimal experience visit our site on another browser.

In other docs case, special counsel won’t charge President Biden

The Republican Outrage Machine will overlook the difference between the Biden and Trump classified documents cases, but the details matter.


It was in early January 2023 when President Joe Biden and his team made an unexpected announcement: The Delaware Democrat, after leaving the vice presidency six years earlier, inadvertently took materials he shouldn’t have. Team Biden contacted the authorities, returned the documents, and announced plans to cooperate with any investigation.

Soon after, Attorney General Merrick Garland appointed Robert Hur to serve as a special counsel in the matter, and eventually, to prepare a report on his findings.

That report is now available, and to no one’s surprise, the special counsel has declined to prosecute the president.

That’s not to say Hur’s findings do Biden any favors. On the contrary, the conservative prosecutor claimed there’s evidence that the Democrat “willfully retained and disclosed classified materials after his vice presidency when he was a private citizen,” before adding that the evidence “does not establish Mr. Biden’s guilt beyond a reasonable doubt.” Hur’s document also appears to add gratuitous commentary about the president’s age and memory.

And while the findings bring the legal investigation to an end, the political debate is likely to continue. In fact, it’s inevitable that the public will soon face an avalanche of Republican claims that Biden is receiving far better treatment than Donald Trump, despite the fact that the two men did the same thing.

The special counsel appears to have anticipated such rhetoric, and made clear that the two men did not do the same thing. NBC News reported:

Hur’s report said there were “clear” material distinctions between a potential case against Biden and the pending case against Trump, noting that unlike “the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts.” Most notably, they wrote, “after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite.” On the other hand, they wrote, “Mr. Biden turned in classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations including his homes, sat for a voluntary interview, and in other ways cooperated with the investigation.”

In fact, after Hur’s report reached Capitol Hill, Democratic Rep. Jerry Nadler of New York, the ranking member on the House Judiciary Committee, said in a written statement, “If Trump had cooperated with the Department of Justice — instead of lying to investigators, again and again — he might have avoided at least some of the 91 criminal charges currently pending against him.”

The point isn’t that Biden and his handling of sensitive materials should be above criticism. The evidence suggests otherwise. But as the Republican Outrage Machine gets warmed up, what matters are the enormous, qualitative differences between the Biden and Trump controversies.

The incumbent president issued a statement of his own, which read in part, “This was an exhaustive investigation going back more than 40 years, even into the 1970s when I was a young Senator. I cooperated completely, threw up no roadblocks, and sought no delays. In fact, I was so determined to give the Special Counsel what they needed that I went forward with five hours of in-person interviews over two days on October 8th and 9th of last year, even though Israel had just been attacked on October 7th and I was in the middle of handling an international crisis. I just believed that’s what I owed the American people so they could know no charges would be brought and the matter closed.”

The subtext was hardly subtle.

Stepping back, the broader takeaway is that a national officeholder has to go to ridiculous lengths to be criminally charged for the mishandling of classified documents. Trump managed to screw this up so spectacularly that an indictment became necessary. Biden didn’t. The end.

Postscript: If recent history is any guide, Republicans will probably turn their rhetorical fire on Hur, too, so let’s quickly note for the record that we’re talking about a Trump-appointed prosecutor who clerked for the late Supreme Court Justice William Rehnquist — one of the most conservative jurists of his generation — and the Federalist Society includes him among the group’s contributors. Hur’s record even includes campaign contributions to some Republican candidates.