Trump and Biden are not similarly situated regarding classified dox
I’m sick and tired of people saying that Biden’s criminal acts save Trump from his own criminal acts when TRUMP DID NOTHING WRONG!
Over and over, relieved conservative pundits say that, now that Biden has been caught squirreling classified documents all over the place (in a “think tank” funded by the Chinese, in his garage, in his home library), that this lets Trump off the hook because indicting Trump would mean holding Biden to the same standard. Dems will never do that, say the pundits, because that’s too dangerous for Dems.
The most recent example is from Ben Shapiro’s podcast. Now, Ben is a super smart guy, although it’s clear here that he’s hampered by that Harvard Law degree.
Full disclosure: I didn’t work with or opposite that many Harvard lawyers during my 30 years in the Bay Area — maybe 20 total — but those lawyers all shared one common trait: They were really bad lawyers. They were also leftists — that’s why they came to the Bay Area. They got by on their credentials and, sometimes, their lack of ethics, not their legal smarts. Obama represents them perfectly.
Because Ben, unlike the Harvard Law grads I knew, is smart and principled, he’s spot-on with most of his analyses about Biden’s document problem, but he falls on his face when he tries to compare Trump and Biden. I’ve cued the video to that point:
So, if you wish to actually prosecute Joe Biden under the statute, you totally could, and if you wish to get Donald Trump under the statute, you would have to apply exactly the same standard that would allow for the prosecution of Joe Biden, so this is all over.
Nope. Wrong. Just wrong. Trump and Biden were not similarly situated when they removed the documents from the White House, so the law does not apply equally to them. Indeed, their situations are further apart than apples and oranges (both of which are fruits). This is like comparing apples and angels.
When Biden, then the Vice President, left the White House, he was a mere employee in the pyramid that is the Executive branch of our government. By contrast, when Trump walked out of the White House, he was the big boss. Under the Constitution, when it comes to national security, any rules that Congress or the bureaucracy create do not apply to the president.
Don’t take my word for it. Take the Supreme Court’s word. In Navy v. Egan, 484 U.S. 518 (1988), the question before the Court was whether, when a “laborer” is denied national security clearance, only a civil service board can conduct the review. In that context, the Supreme Court was clear about the president’s plenary (complete and unimpeded) power over national security questions, unimpeded by congressional acts:
The President, after all, is the “Commander in Chief of the Army and Navy of the United States.” U.S.Const., Art. II, § 2. His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President, and exists quite apart from any explicit congressional grant. See Cafeteria Workers v. McElroy, 367 U. S. 886, 367 U. S. 890 (1961).
If Congress cannot limit the president’s power, can his own employees do so using regulations? I say no. It’s not just a matter of the employees lacking the authority to constrain the boss. It’s a case of the boss having very special privileges denied to anyone else in America.
For that reason, it shouldn’t matter even if a prior president issued an executive order telling the employees to create those regulations. The beginning and the end, the alpha and the omega, the ig to zack…they’re all the same: The bureaucracy — the minions — cannot override the president.
Within that context, it doesn’t matter that one of the president’s employees didn’t give the president permission to declassify a document. The president doesn’t need rubber stamps or committees or review boards. Trump was completely accurate during his interview with Sean Hannity:
Presidents can declassify documents on a whim, even just by “thinking about it,” former President Donald Trump told Fox News’ Sean Hannity on Wednesday.
Trump appeared on Hannity’s show to discuss the ongoing federal investigation into classified documents found in Trump’s Mar-a-Lago home during an FBI raid.
“Is there a process? What was your process to declassify?” Hannity asked.
“There doesn’t have to be a process, as I understand it,” Trump responded. “You know, different people say different things, but as I understand it there doesn’t have to be.”
“If you’re the president of the United States you can declassify just by saying: ‘It’s declassified.’ Even by thinking about it,” he added. “There doesn’t have to be a process. There can be a process, but there doesn’t have to be. You’re the president, you make that decision… I declassified everything.”
Or, as the meme says:
While I’m pointing out Ben Shapiro’s errors, there was one other thing he did that I found irritating. He took at face value the administration’s claim that, once the lawyers just coincidentally went looking for and found the documents, they instantly turned them over to the DOJ.
Ben’s irritation was that we didn’t learn of this document discovery before the November election. However, my irritation stems from the fact that the administration is using this timeline to claim the high moral ground over Donald Trump, who waited almost a year before informing the FBI about his documents (and did so only when the leftist National Archives tattled on him).
The AP sums up this pro-Biden, holier-than-thou view:
HOW QUICKLY WERE THE CLASSIFIED DOCUMENTS TURNED OVER?
BIDEN: After the materials were discovered at the think tank, Biden’s personal attorneys immediately alerted the White House counsel’s office, which notified NARA, which took custody of the documents the next day, Sauber said.
“Since that discovery, the President’s personal attorneys have cooperated with the Archives and the Department of Justice in a process to ensure that any Obama-Biden Administration records are appropriately in the possession of the Archives,” Sauber said in a statement.
Part of that cooperation, Sauber said this week, included Biden’s personal lawyers examining other locations where records might have been shipped after Biden left the vice presidency in 2017. That search concluded Wednesday night, Biden told reporters at the White House on Thursday, though he did not say when the second batch of documents was found.
Sauber said the Justice Department was “immediately notified” after the documents were found at Biden’s home and that department lawyers took custody of the records.
TRUMP: A Trump representative told NARA in December 2021 that presidential records had been found at Mar-a-Lago, nearly a year after Trump left office. Fifteen boxes of records containing some classified material were transferred from Mar-Lago to NARA in January.
That, my friends, is false virtue based on misdirection. That’s because it’s not a case of “immediately v. nearly a year.”
Recall, please, that Biden took those documents six years ago and placed some in a location that the Chinese practically own and others in a location to which his junkie son (and anybody with a garage door opener) had access.
Remember, too, that Biden has refused to release any information about who’s visiting him at any of his private homes. I thought that was because he was hiding the presence of the doctors pumping him full of drugs to keep him functioning. Knowing about those documents, though, suggests that the non-existent visitor logs have a more nefarious purpose.
The timing of Biden’s “suddenly” having his lawyers “look” for the documents so that they could virtuously turn them over is also suspect. Recall that it was entirely possible before the election that Republicans would sweep Congress. “Finding” the documents was an insurance policy. Likewise, the big reveal came about when Kevin McCarthy was forced to bow before the MAGA crowd. (And you might enjoy Wayne Allyn Root’s theory about McCarthy and Trump.)
It’s fairly obvious that what’s happening here is the Biden administration trying to get out in front of a story by appearing virtuous. There is no virtue here; only corruption. Biden sat on illegally handled documents for six years; Trump never illegally handled documents. Once again, it’s apples (rotten ones) versus angels.
Don’t let the media, the administration, or even well-intentioned conservatives fool you. Biden committed one of the worst crimes a member of the government can commit, while Trump did nothing wrong.
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Image: Washington Post screen grab.