One of these things is not like the other

First tonight, a programming note. After a full day of teaching on Thursday, I’ll be getting a colonoscopy on Friday. I suspect that means you won’t hear from me again before this Sunday’s “The Week Ahead.” I share this personal information so you’ll know why I’m away during the rest of this week of fast-breaking developments but also, more importantly, to encourage you, if you’re of “a certain age” like I am, to make sure you get screened when your doctor suggests you should. I’m getting a colonoscopy because a close friend from law school who died of cancer last year made me promise I would. I hope you’ll all look after yourselves too.

The former president is a skillful practitioner of the tawdry art of deflecting the full force of the criminal justice system when it’s turned against him. He seems to get more than his fair share of lucky breaks. As a prosecution of Trump over classified documents found at Mar-a-Lago began to seem inevitable, there was news that lawyers for Joe Biden who were clearing out an old office he’d used at the Penn Biden Center before the start of the 2020 campaign had found 12 classified documents in a locked closet.

The lawyers immediately called the National Archives and voluntarily turned them over. The National Archives was apparently unaware they were missing the documents. Biden’s lawyers continued to cooperate with Archives and with DOJ, which was promptly advised of the situation and opened an investigation.

We do not know details of the documents, but there has been reporting that at least some of the items are top-secret. President Biden, taking a question during the press conference at the conclusion of the “Three Amigos” meeting in Mexico said that he was unaware that the documents were there until his lawyers told him about them. On Wednesday, there was news that additional classified material was found in a separate, unspecified location. Facts tend to morph during the course of an investigation, so it’s impossible to predict where this ends up.

DOJ has been in the loop since early November. Attorney General Merrick Garland assigned John Lausch, the U.S. Attorney in Chicago, to do a preliminary review of the documents to determine whether it’s necessary to appoint a special counsel to conduct a criminal investigation in the matter. Lausch was likely selected because he is one of the last two Trump-appointed U.S. Attorneys who remains in office.

Under the special counsel regulations, the Attorney General “will appoint” a special counsel when “he or she determines that criminal investigation of a person or matter is warranted” and it would be a conflict of interest for DOJ to handle it or it would be in the public interest to appoint a special counsel. You can read the full regulation here. In the Biden situation, the first question that has to be answered is whether a criminal investigation is warranted. Although the threshold is low, it’s not clear based on publicly available information that there is information that merits criminal investigation. A decision needs to be made about that before next steps can be taken.

DOJ shouldn’t investigate Joe Biden over this situation merely because Donald Trump is under investigation for illegal retention of classified materials and obstruction of justice. Biden’s situation must merit investigation standing on its on before anything beyond the preliminary investigation U.S. Attorney Lausch conducted should be initiated. The fact that the situations have a similarity—classified documents were found in areas both Trump and Biden control where they should not be—doesn’t necessarily lead to the conclusion that Biden’s situation involves criminal conduct. Politically, the most expedient thing for the Attorney General to do would be to appoint a special counsel for Biden and let the investigation take its course. But we don’t subject people to criminal investigation in this country unless there’s predication to believe a crime was committed.

Not all spills of classified information involve crimes. Sometimes they are mistakes. The fact that they should not happen with the nation’s most important secrets doesn’t mean that they don’t. So U.S. Attorney Lausch was charged with investigating to determine precisely what happened and make a judgment about whether it was potentially criminal or not, to aid the Attorney General's decision.

There isn’t a reasonable suspicion based on what’s publicly known to believe that Biden, personally, committed any crimes. But before Garland can make a determination, he’d want to know a lot more about the facts: how the documents got there, what classification level they have, what type of information is included, who is responsible for them being there, whether Biden knew about their presence at any point in time, and so on. CNN reported on Tuesday that the classified materials at Penn Biden Center were in an office that also contained papers regarding the funeral of Beau Biden, the President’s son. But there was no word on whether the box of classified items were commingled with other papers, including ones of a personal nature. There are serious questions that need to be answered. It may well be the case that DOJ developed sufficient reason to believe a crime may have been committed by Biden or someone else. That would merit an investigation. Lausch might have also established that while the spill should not have happened, it was not criminal.

This situation is unusual, because in most cases where an Attorney General is deciding whether or not to appoint a special counsel, there is good reason to believe a crime may have been committed and the inquiry is really into whether there’s a need for a special counsel or not. But here, the initial focus must be on the threshold issue of whether there is reason to believe that someone committed some crime. The regulations permit the Attorney General to “direct that an initial investigation, consisting of such factual inquiry or legal research as the Attorney General deems appropriate, be conducted in order to better inform the decision,” before deciding how best to proceed, a wise process for Garland to use here.

Since the only facts we know are ones that are being leaked to members of the press, it’s difficult to assess precisely what information DOJ has. You’ll recall we only learned there was a criminal investigation into Trump involving Mar-a-Lago because the former president revealed that DOJ had conducted what he called “a raid,” insinuating that they had planted documents (which was confusing, because later on, he said they were his documents and the government couldn’t have them back), and then filed a lawsuit that revealed more details. DOJ went to extremes to conceal the existence of the investigation from the public, including dressing FBI agents conducting the search so they would blend in with the guests at Mar-a-Lago.

The Biden White House is being criticized for failing to inform the public of the situation as soon as the documents were discovered. That seems fair, since he is not a former president, entitled to conduct his affairs out of the public eye, but the current one. And it seems naive to believe that the investigation would not leak at some point, in any event. But it’s worth remembering that the leakers may have motives we are unaware of, and they may be revealing information in a selective fashion in order to achieve whatever their goals are. It’s interesting that the story broke while Biden was out of the country, conducting sensitive negotiations with foreign partners; a time when members of both parties have traditionally avoided any action critical of a president.

Despite not making things public ahead of the leak, the Biden team appears to have done the right thing in a tough situation based on what we know now. In sharp contrast to Trump’s efforts to hold onto documents, Biden turned them over voluntarily, and without any request for them or even indication that the Archives knew they were missing. His lawyers voluntarily searched for, and disclosed the existence of, additional documents. The presence of those documents appears to be unintentional and negligent, although due to whose negligence is yet to be established.

Trump, by contrast, removed documents to Mar-a-Lago after his White House Counsel told him he need to return anything in his possession before leaving office. He refused for a period of months and despite repeated requests to return government documents, including classified material. He claimed—in apparent contradiction—that the FBI had planted them, that they were his personal papers, and that he had declassified them (even though there was no record that reflected that action). Trump even came up with a plan (rejected by his staff) to barter them with the Archives for material he believed would prove his pet theory, that the investigation into connections between Russia and his 2016 campaign was originated by a malicious deep state in the FBI and the intelligence community that was out to get him. And of course, there’s the painfully tedious history of Trump’s efforts to avoid compliance with a subpoena, producing a bit of the classified material still in his possession but causing his team to file an attestation with DOJ that they had returned it all. Ultimately, DOJ had to obtain a search warrant. This secured most of the rest of it. Still more classified material was discovered in a Trump storage area weeks after the search.

If you consider the facts, it’s easy to see that the two situations are apples to oranges. In one, there is evidence of knowledge that the classified material was there and intentional action to prevent its return to the government. In the other, at least insofar as we currently know, there is nothing beyond the appearance of negligence. While all spills of classified material are important and require a national security assessment of damage and risk, not all cases are criminal. Of course, that distinction is likely to be meaningless in the political sphere, where Republicans are already busy calling for Joe Biden’s head—seemingly without realizing the implications for Trump.

But false equivalencies are just that. They are false. If Trump had handled his situation in the same way the Biden team is handling theirs, Trump wouldn’t find himself in the legal quagmire he is now in. Had he returned the documents to the National Archives at the first request, it’s highly unlikely the public would have learned of the situation or cared much if they did. Just because Trump’s conduct merited criminal investigation, it doesn’t necessarily mean that Biden’s does.

That doesn’t mean there aren’t serious questions ahead for Biden. There is likely already a risk assessment in process for intelligence purposes. Biden will have to weather the political questions, both those that are fairly raised, like why the White House didn’t reveal the situation to the public, and the unfair ones that equate Biden’s conduct with Trump’s. The legal questions, at least initially, will center on what Biden knew. If he can establish he was unaware the documents were there and is not responsible for their presence, that should end the inquiry, at least as to him.

The criminal statutes that are most likely to be considered in a situation like this are the same ones implicated in the Trump investigation. DOJ identified three in connection with obtaining the search warrant for Mar-a-Lago:

• 18 USC 793, the Espionage Act, which covers multiple crimes ranging from intentional use of sensitive information to damage national security to careless loss of national security information.

• 18 USC 2071, which involves willful removal, concealment, destruction, etc., of government records or the attempt to do so.

• 18 USC 1519, a statute criminalizing obstruction of federal investigations. This third statute is not implicated in the Biden matter; it’s involved in Trump’s case because of his efforts to conceal materials and deceive and interfere with the federal investigation in his case.

Both the 793 and 2071 violations for the most part require an element of willfulness. The 2071 violation requires that a defendant must have done the acts prohibited by the law intentionally with knowledge that he is violating the it. It does not appear, at least based on what we currently know, to apply to Biden. That leaves the Espionage Act, subsections (d) and (e) of which prohibit willfully refusing to return material related to the national defense, whether the defendant was properly or unlawfully in possession of it, at the request of a government official. Again, there seems to be no possible application to Biden, who voluntarily alerted the National Archives to materials it was unaware were missing.

There is one additional provision of the Espionage Act that could come into play. Subsection (f) provides that:

“Whoever, being entrusted with or having lawful possession or control of any document … relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer.”

On its face, the provision seems to criminalize gross negligence, an extreme degree of carelessness in handling national defense information. We do not know if there is gross negligence involved in the Biden case. But even if there is, sloppiness is not a crime. The Supreme Court, in a 1941 case, Gorin v. United States, suggested that the statute must be interpreted to require proof that a defendant intended that their conduct benefit a foreign power to violate 793(f). After Gorin, prosecutors have largely avoided indicting cases based solely on a gross negligence theory because of the likelihood that the Court would reverse any conviction they obtained.

One exception that is instructive and interesting involved James Smith, a Los Angeles base FBI agent who had a 20-year affair with a Chinese national he recruited as a source. She gained unauthorized access to national defense material, because he sometimes had it when they were together. Although charged under a gross negligence theory, he instead pled guilty to making false statements when he concealed the nature of their relationship, and spent no time in prison. Given precedent and DOJ’s long-standing practice of requiring an aggravating factor beyond mere possession before charging Espionage Act cases, it seems unlikely that even this “gross negligence” crime applies here. Those who are careless with national security information may pay for it politically or professionally, but in the absence of a possible criminal violation, there is no reason to initiate an investigation.

We may well see the appointment of a special counsel here for prudential reasons or because DOJ has obtained more information than is publicly available. But unless the facts change significantly, criminal charges or anything that merits impeachment seem unlikely. Republicans will try to pillory the president, but that’s politics, which these days are largely divorced from any sense of what’s fair, or even what’s true. As for Merrick Garland, he would do well to follow the advice of one of his predecessors, Janet Reno, who frequently pointed out that since prosecutors could not make everyone happy with their decisions, they should do what was right.

Classified documents were found in spaces under the control of both Donald Trump and Joe Biden. That’s where the similarities here end. Cases that are similar should be treated the same, but these two are not. Loud, angry voices shouldn’t be permitted to turn this situation into something it isn’t, although they will undoubtedly try to. It’s up to us to arm ourselves with the facts and be prepared to confront people who try to alter them—with the truth.

We’re in this together,

Joyce