Joe Biden and his classified document scandal – a surely self created crisis – could genuinely come back to haunt him: Special Counsel Robert Hur could have a rough time resisting going after President Joe Biden–maybe for legal, political, and plain old chutzpah reasons.
The historic 37-count federal indictment against former President Donald Trump for allegedly mishandling classified information establishes mostly a case for violation of the 1917 Espionage Act–31 of those counts. Most of the rest is about obstruction or conspiracy to obstruct.
So far, Joe Biden’s defenders have maintained the current president has, in contrast to Trump, been entirely cooperative with the investigators regarding his classified documents.
If Biden was cooperative, maybe no obstruction charges. That would still leave the president wide open for potential violation of the Espionage Act.
Biden had classified documents in his garage, in the Penn Biden Center near D.C.’s Chinatown area (as Trump eagerly pointed out at the Tuesday Bedminster post-arraignment speech). Some classified papers reportedly go back to his time in the Senate.
“Joe Biden had troves of classified documents from his time as vice president and even as a senator, which was completely and totally illegal,” Trump said.
Trump then cleverly went on to try to morph Biden’s document scandal with yet another Biden family scandal.
“Many of Biden’s classified documents were in Chinatown, D.C., Chinatown, which is shocking considering his family received so much money from China. I wonder how many times the friends of ours from China reviewed those documents, Chinatown, D.C.,” Trump said.
In All Fairness
Hur, a former Trump-appointed U.S. attorney in Maryland, has been investigating Biden’s possession of classified documents since January. Attorney General Merrick Garland appointed Hur in part because he had appointed special counsel Jack Smith in November to investigate Trump for the classified documents and for Jan. 6. It would have looked really bad not to have an independent probe of Biden for a nearly identical case.
Yet, a handful of folks on the right–such as former Trump Defense Department official Kash Patel–slammed Hur as a “swamp monster” and “government gangster,” who is “now in charge of the continued crime-scene cover-up.”
Rep. Troy Nehls, R-Texas, noted Hur was formerly an assistant to FBI Director Christopher Wray, saying, “They’re all in on it.”
Other Republicans raised concerns that Hur was an assistant to Trump’s former Deputy Attorney General Rod Rosenstein, and played a role in appointing special counsel Robert Mueller to investigate the Russia hoax.
Count me doubtful on these points, and it’s not particularly a defense of Hur. The simple fact is that based on history, special prosecutor positions involve plenty of ego and testosterone from the guys holding the job.
Whether it’s Mueller, John Durham, Ken Starr, Lawrence Walsh, or others, these prosecutors won’t allow themselves to leave the post empty-handed. That doesn’t mean fabricating a charge, mind you, but it does mean grasping for straws, making lemonade out of life’s lemons, etc.
To be clear, Hur can’t indict a sitting president under Justice Department guidelines. But he could indict those in Biden’s inner circle that handled the documents. He could even name Biden as an unindicted co-conspirator. Hur would at some point issue a report–much like Mueller and Durham–and probably a scathing one.
Durham gained one low-level conviction obscured by two acquittals in his investigation, but his final report blasted the FBI’s conduct. Mueller indicted a few of Trump’s allies such as Paul Manafort and Roger Stone for crimes unrelated to Russia collusion. His report exonerated Trump of conspiring with Putin, but still attempted to make a sneaky case for obstruction of justice.
Hur’s report could determine that if Biden were not president, he would be indicted for violation of the Espionage Act, and maybe other crimes.
This just might put House Republicans in a pickle. There are members eager to impeach Biden for an unproven bribery allegation. If a prosecutor issues a finding that Biden committed a felony, that would be entirely logical and justifiable grounds to impeach by almost any standard.
However, if Republicans pulled the trigger to impeach Biden based on Hur’s report, it risks legitimizing the espionage charge in Smith’s against Trump. So, it might be a double-edged sword on the partisan politics front.
Yes, you might argue, Trump was actually president when he took the documents with the authority to declassify. The documents in Biden’s possession were mostly from his time as vice president and in the Senate–a time when he didn’t have declassification authority. But try boiling that down to a 30-second sound bite in building a political case for impeachment.
At any rate, Hur is likely already feeling the heat to produce results on his end. He is not going to want to be outdone by that other special counsel.
You bet Joe Biden wished he never took those documents.
Barbara Joanna Lucas is an opinion writer and researcher in Northern Virginia. She has been a healthcare professional, political blogger, is a proud dog mom, and news junkie.