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Earlier today, CNN reported that a lawyer for former Vice President Mike Pence discovered “about a dozen” documents marked classified at Pence’s home in Indiana last week. Pence, as confirmed by two letters written by Greg Jacob—his former legal advisor and now designated representative for vice presidential records—promptly advised the government of the find. Jacob wrote that after initial communications with the National Archives, DOJ showed up at Pence’s residence to take custody of the classified materials. Jacob promised to personally deliver additional boxes containing records that possibly fall under the Presidential Records Act to NARA.
Now DOJ will review the documents and assess how they came to be in the former vice president’s house. But you’ve got to hand it to Pence. His team appears, at least initially, to have gone to school on Trump’s criminality and Biden’s early communications problems and done it right. Or at least as right as you can be when you’re on video saying you didn’t take any classified material with you when you left office. But there is no suggestion Pence knew the documents were there or violated the law.
At the moment, it appears that Pence had four boxes of documents from his time as vice president that were moved to the new home he purchased after leaving the Naval Observatory and moving back to Indiana. There were press reports at the time that the former vice president was homeless and couch surfing, having lived in the Governor’s mansion before service in the Trump administration, which means there will be a period of time before the purchase of the house where the General Services Administration likely maintained the documents in temporary storage. The FBI will have to run down the details to assess whether any harmful spill occurred. No word yet on what the subject of the materials is or what level of classification they were given. They will be “fresher” than the Biden documents because of Pence’s relatively recent departure from government, and risks will need to be assessed.
The situation with Pence, as with Biden, casts Trump’s criminality into sharper focus by contrast. David Corn summed it up in a tweet.
Like Biden, Pence voluntarily returned materials the government did not know were missing. But while people went off the deep end when the Biden documents came to light, somehow, having Pence in the mix seems to have restored a bit of common sense to the arena. There’s no suggestion based on what we know that Pence violated the law. While Biden’s team may have mangled their early public comms, the situations are the same. Nothing criminal to investigate, no need, as we discussed here on Civil Discourse, before it happened, to appoint a special counsel. But now we have two and the prospect of a third if Attorney General Merrick Garland is going to be consistent when it comes to Mike Pence.
It’s interesting that with Biden, the need to appoint a special counsel garnered enormous attention and even something approaching public consensus before it was announced. Some Democrats joined in. That public opinion was based on the pre-conditioned reflex we seem to have developed after years of Trump screeching at every turn that he’s treated unfairly, that every investigation is a witch hunt, that Democrats always give their own a pass. And none of that’s true. If the federal government really was being turned against Republicans like Jim Jordan alleged to justify his new venture in McCarthyism, the House Select Subcommittee on the Weaponization of the Federal Government, Trump would have already been indicted and would be in an orange jumpsuit in federal prison, instead of letting a district attorney in Fulton County, Georgia, get first bite at the apple. If the federal government was weaponized to protect Democrats, Biden’s find of classified material would never have been investigated by DOJ; they would have turned a blind eye. Democrats negotiate against themselves with Trump at every turn, hoping to placate him, and, of course, never succeeding because his complaints are inherently unreasonable and not grounded in fact; he uses them as a ruse to avoid accountability for his misdeeds.
(For that matter, there’s been virtually no discussion of that leak of the Biden matter, which, if made by someone at DOJ, violated ethics rules at a minimum. The Trump investigation was conducted for six months, completely under the radar, and only disclosed by Trump himself after DOJ executed the search warrant at Mar-a-Lago. Biden’s find of documents occurred in early November, with the DOJ investigation following closely on its heels. Two months later, someone disclosed the Biden investigation to the media and it became public. It seems highly unlikely that anyone on Biden’s team made the disclosure, and the only other people who would have known about the matter would have been federal investigators and prosecutors. So, hardly a system that protected Biden and persecuted Trump. (Where’s the Marshal of the Supreme Court when you need her to investigate a leak?)
Is there a lesson from all of this? Yes. It’s time to stop pandering to Trump’s incessant complaints. Do the right thing and let the chips fall where they may. There is nothing that will make Trump happy or soothe his base. No amount of retaining Trump-appointed U.S. Attorneys to investigate Hunter Biden—while giving Ivanka a pass for trademarks obtained from foreign governments, including China, while working as a senior advisor to the president—will convince the single-minded that Democrats aren’t rigging the government against Trump.
The classified documents situations—Trump’s and Biden’s—were apples to oranges from the start. Trump’s deliberate efforts to hold onto classified material he knew he had and his obstruction of justice merited criminal investigation. Biden’s voluntary disclosure, with no suggestion that he was aware the material was in storage boxes in his office and home, didn’t. For whatever reason, people who were unable or unwilling to see the difference when it was just Biden seemed to be seeing it more clearly as today’s disclosure about Pence unfolded. DOJ will take the appropriate look at what happened, the Archives will get their documents back, and, most likely, life will go on. That’s what should have happened with Biden too, with appropriate public disclosure and explanation.
But DOJ’s north star seems to have been the effort to be seen as treating Trump fairly, rather than following special counsel regulations that specify an Attorney General should consider an appointment if he or she “determines that criminal investigation of a person or matter is warranted.” Until there is predication to support a criminal investigation, there is no legal rationale for appointing a special counsel, no matter how appealing the idea might be for those legitimately intent on re-establishing DOJ’s credibility with the public after the Trump years. Bending over backwards to establish your good faith with people who have none of their own doesn’t work.
It’s time to stop trying to satisfy people who will never be satisfied. The country, our institutions, and the rule of law continue to take damage so long as we treat the former president like anything other than a would-be strongman who tried to upend the Constitution to hold onto power, violating the Espionage Act and obstructing justice afterwards. Although Trump is entitled to the same constitutional rights as anyone else under investigation, he should also be investigated just as anyone else in his situation would be. The special counsel and DOJ must evaluate the evidence and act on it as they would with anyone else.
Former January 6 committee senior investigative counsel Tim Heaphy, who put his time in at DOJ and has serious prosecutive chops, said in an interview last Friday on MSNBC that, based on the evidence uncovered by the committee’s work, he expects DOJ to prosecute Trump.
Beyond the issue of Trump himself, we have a serious national security problem on our hands that has to be addressed. With three of the country’s four most recent top executives in the mix on this, certainly every former top-level official with any sense (or at least the ones who plan to run again, or seek appointed office) is hiring lawyers to review all the boxes of documents that left government service with them. Now is the time to do it—there’s relative safety in being part of the herd, especially with Trump playing the role of littlest zebra. There needs to be an assessment of whether the classified documents problem is unique to the White House or whether it’s broader, and new procedures will need to be put in place to prevent reoccurrence. It would be a good time for Congress to consider the widely discussed problem of over-classification of information and move to remediate it. A select committee, a truly bipartisan one, could take advantage of expertise from the intelligence community, military security experts, and law enforcement to revamp the system so that it effectively protects our nation’s secrets, with measure to ensure the rules are strictly enforced and that there are safeguards in place. That work could muster bipartisan support because it would not be accusatory. It would be prospective, with new rules going into effect from the day of adoption forward. National security, something both parties have an interest in protecting, would be the winner.
We’re in this together,