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Did Joe Biden Just Give Donald Trump a ‘Get Out of Jail Free’ Card?

Joe Biden. Image Credit: Gage Skidmore.
U.S. President Joe Biden reacts as he makes a statement about the school shooting in Uvalde, Texas shortly after Biden returned to Washington from his trip to South Korea and Japan, at the White House in Washington, U.S. May 24, 2022. REUTERS/Kevin Lamarque

Donald Trump supporters seem to believe that the Joe Biden investigation makes it unlikely Trump would face charges. That may not be true. As of about two weeks ago, it looked like former President Donald Trump was facing significant legal jeopardy. A special counsel had been appointed to look into both the Mar-a-Lago documents scandal and into the role of Trump and his allies on January 6. 

Now, things have changed. Or maybe they haven’t. 

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President Biden now also has a special counsel looking into his own habit of keeping classified documents on his own properties, with the Justice Department recently naming Robert Hur to that position. He joins Jack Smith, appointed last year as special counsel to look into Trump. 

Is Donald Trump Saved? 

Does the appointment of Hur make Trump less likely to face charges himself? That’s unclear. But it’s not likely to completely put Trump in the clear of legal jeopardy. 

The investigations into Trump and Joe Biden are separate investigations, being supervised by separate prosecutors.

Whether charges are brought, in either case, will be the decision of those respective special counsels. Part of the point of naming special counsels, after all, was to remove these investigations from politics, to take the charging decisions out of the hands of Garland, who was appointed by Biden, and to avoid any appearance of political favoritism. 

If Trump is charged with a crime related to documents, and Biden isn’t, Trump and his supporters are likely going to claim Trump was treated unfairly and there’s a double standard. But it’s very likely that they were going to claim that anyway, even if there were no investigation into Biden. That’s been the claim every single time Trump has been accused of any type of wrongdoing since he first entered politics. 

Trump has turned to whataboutism at various times, whether it was the Mueller probe or both of his impeachments. But none of those cases has involved an actual indictment, and this one could. “What about Biden?” is an argument that can be made on Truth Social or cable news, but it isn’t the kind of defense that is going to work in court, especially if Trump really did handle the documents improperly. 

And besides, there’s also a chance that Trump could face charges for his part in January 6, where there’s no corresponding scandal involving his Democratic successor and no hypocrisy angle. In addition, Trump could be charged with obstruction of justice, or another such crime, related to the documents, while there’s no indication, at least from reporting so far, that Biden obstructed justice in relation to the classified documents in his possession.

There are, after all, significant differences between the cases, based on what we know so far, from the level of cooperation to the volume of documents at issue. 

“Trump has publicly attacked the process from the start. He didn’t voluntarily hand over anything to the National Archives and instead has fought the agency every step of the way to retain documents the government knew were missing,” Jonathan Bernstein wrote this week for Bloomberg News. “Biden’s team, in contrast, voluntarily turned over items that the archives weren’t aware of. And Trump appears to have retained far more documents, and handled them far more cavalierly, than Biden did.” 

It would appear that the new documents investigation is a political problem for Joe Biden, one that denies him the moral high ground to criticize Trump for his handling of documents. This may very well emerge as a major issue, should Trump and Biden end up opponents for the presidency again in 2024, especially if Trump has been indicted and Biden has not. 

But there’s little reason to think that the Biden investigation makes a Trump indictment that much less likely. If there’s a strong enough case against Trump to charge him in relation to his own document misdeeds, Jack Smith, the special counsel, probably isn’t going to decline to charge him, just because Biden is also being investigated in a completely separate case.

One would think that wouldn’t enter into Smith’s thinking at all, or at least; it’s his job for it not to enter into his thinking. 

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Stephen Silver is a Senior Editor for 19FortyFive. He is an award-winning journalist, essayist and film critic, who is also a contributor to the Philadelphia Inquirer, the Jewish Telegraphic Agency, Broad Street Review and Splice Today. The co-founder of the Philadelphia Film Critics Circle, Stephen lives in suburban Philadelphia with his wife and two sons. Follow him on Twitter at @StephenSilver.

Written By

Stephen Silver is a journalist, essayist, and film critic, who is also a contributor to Philly Voice, Philadelphia Weekly, the Jewish Telegraphic Agency, Living Life Fearless, Backstage magazine, Broad Street Review, and Splice Today. The co-founder of the Philadelphia Film Critics Circle, Stephen lives in suburban Philadelphia with his wife and two sons. Follow him on Twitter at @StephenSilver.