Does Biden’s documents issue mean Trump won’t be charged?: One legal analyst says it might be difficult for the Justice Department to charge the former president in connection with the case of the documents while the president has a documents issue of his own.
Joe Biden’s Mistake Saves Donald Trump?
The coming week might bring some answers as to whether or not former President Donald Trump is actually going to be indicted by a grand jury in New York after he had claimed the week before last that such an indictment was imminent.
Trump, on the other hand, is also facing potential legal jeopardy on several other fronts, including a grand jury in Georgia and two separate probes by a special counsel in Washington.
If any of those probes lead to a criminal indictment, it would be the first ever for a former president of the United States.
One legal analyst this weekend listed one reason why there might not be charges coming in at least one of the cases.
CNN senior legal analyst Elie Honig appeared on Michael Smerconish’s CNN show over the weekend, and was asked whether he believes Attorney General Merrick Garland will go along with whatever charges are recommended by Special Counsel Jack Smith.
“He does, under the law, have to give Jack Smith’s recommendation ‘great weight,’” Honig said of Garland. But he added that Garland is required to exercise “prosecutorial discretion.”
The question is, will he?
“I can tell you, from day one at the Justice Department — I was there — you are trained that you are not a robot, your job is not to take the inputs, the evidence, and mechanically apply it to the law, and whatever spits out as the result, you do that. You are to exercise broader discretion.”
What are the considerations to take into account, for the attorney general?
“You have to look at factors like, ‘is it fair to bring this case?’, ‘is it necessary to bring this case,’ if you’re the attorney general, you have to think about, how will this case reflect on this department? Will it promote a sense of legitimacy? Will people believe in this case?”
What Happens Next?
Smerconish, the TV host who is also a lawyer, stated that if he were the special counsel, it would not matter that there have also been discoveries of classified documents in the residences of President Biden and former Vice President Pence. But he asked Honig if it will, in fact, matter in whether the Justice Department brings a case. The Biden case is being presided over by a different special counsel.
Honig compared the situation to “offsetting penalties” in football, in which the offense and the defense both commit penalties on the same play, “the result is that it wipes out the entire play,” even if one penalty is worse than the other.
“We can all understand, analytically, that there are important differences between the Trump documents case and the Biden documents case- Trump had more documents, he was obstructing, Biden was not,” Honig said. “However, I think you’re right, I think it’s going to be very difficult for Merrick Garland… to justify and have public confidence in an outcome where he says, ‘I’m gonna give the guy who appointed me as attorney general, the Democrat, a pass, who by the way is running for office in 2024, in all likelihood, but I’m going to indict, and seek to imprison, his likely opponent, Donald Trump, I think that’s a tough needle to thread.”
There’s no indication as to what the timing is for any type of decision on an indictment for Trump from the special counsel’s office.
Honig said that he still expects the Manhattan case is still the most likely to move towards an indictment first, with the Georgia case likely to be second. The federal cases are likely to come after, especially since Attorney General Garland is known as a “slow decision-maker.”
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Expertise and Experience:
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.