#WTH file-gate(s): Same crime, different POTUS?
Andrew McCarthy joins us to talk Trump, Biden, and...Hillary Clinton!
Three things from this week’s pod with National Review’s Andy McCarthy:
From a statutory perspective, Donald Trump and Joe Biden committed the same crime. However, Trump also lied to a grand jury about it — that’s bad. But Biden hasn’t faced a grand jury. Why?
The real reason no one will be prosecuted goes back to Barack Obama letting Hillary Clinton off the hook for a backyard server full of government emails (some likely classified) which she then deleted.
Congress should legislate clear rules regarding the declassification of classified material. It’s constitutional, and it’s time.
You may say to yourself (if that’s your political bent), “eh, Joe Biden is doddering and mixed up his files.” And you may say (if that’s your political bent) “eh, the Feds have been out to get Donald Trump since 2016.” But you cannot say that either this president or his predecessor have any regard for the rules that bind mere citizens of this great nation. Classified? Whatev. Top Secret Compartmented Information? Zzzz. Human Intelligence? Boring. Who’d want to steal that from Joe’s garage? Or Mar-a-Lago? (And BTW, thanks NYT for that interactive 3D visualization of Trump’s Florida lair; where’s your graphic of Joe’s corvette?)
It’s all a disgrace. The President “investigating” himself with his own lawyers and his own Justice Department is wrong. The ex-president lying to a sworn grand jury is wrong. Hillary Clinton skipping off with the contents of her State Department inbox is wrong. None of this is hard to understand, it’s just appalling. Can’t we do better than the hypocrites on Capitol Hill and in the media who think Uncle Joe’s mishandling of national security secrets is one thing, but Evil Donald Trump’s is another? Perhaps not. But there are some action items:
Congress, investigate what happened, and when, and why the White House concealed it. (PS Also please explain to us why Joe Biden was paid a million dollars not to teach at U.Penn?)
Congress, do your job and codify rules about declassification, consistent with the president’s constitutional authority to classify and declassify.
Folks: There’s an election in less than two years. We can do better. Let’s.
HIGHLIGHTS
So… Joe Biden also wandered off with classified files. Is Trump now off the hook?
AM: The context for this is really Hillary Clinton. […] If I were the Justice Department and I was trying to make a case on Trump for mishandling classified information, the most relevant thing to me is the Hillary Clinton precedent, because it's extensive in time and space, her conduct is very willful in the sense that it's engaged in for the purpose of deceiving government record keeping requirements. So she mocks up this home brew server system. In the end, thousands of government files get destroyed, whether they're classified or not. There's some evidence of obstruction, some evidence of possibly misleading the FBI, and the perfunctory interview they did at the end.
So it seems to me that the problem for prosecutors on the Trump case is to be able to show that he's somehow so uniquely awful that he rates being prosecuted even though Clinton got a pass. And from your standpoint as a prosecutor trying to put a case like that together, the one thing I think you'd have to say is you can't afford for anything to go wrong. You have a thin margin for error, you need everything to go right, and then suddenly out of left field, it turns out that the sitting President of the United States is now suspected of committing the same crime that you're trying to investigate Trump for.
The media keeps telling us that the Trump and Biden cases are SO different…?
AM: You could argue all day about whether Trump's offense is worse than Biden. I would say frankly it looks like it probably is, but we also don't know a whole lot about Biden's yet, and there's a lot of unanswered questions about it. But the biggest problem they have is Hillary Clinton, if you're the Justice Department. It's not a comparison between these two other guys.
Did they do exactly the same thing?
AM: No, they're not exactly the same thing. But when two people are suspected of violating the same criminal law, the details of the way the offense was committed, the degree of culpability, is rarely a mirror image. So I always look at this in terms of there's differences of degree and differences of kind.
If you're talking about the criminal law, the first question is the liability question, which is did he commit the offense or not? If you were looking at Biden in that respect, the question would not be is what he did worse or less egregious than what Trump did? It would be did he mishandle classified information in a grossly negligent manner? If he did, it wouldn't matter in terms of his personal guilt, what Trump did. So in the criminal law, we always end up dividing liability and culpability, or more crudely guilt and sentencing. So on the issue of guilt, the question is did he violate the statute? On the question of culpability, there's nothing that's more relevant than comparing similar offenders. The only thing that's even in the same ballpark of relevance is what somebody's criminal history is. And here that's not much of a question that the two guys were talking about. We're really talking about comparing their two situations.
And again, we don't know everything about Biden, but one thing you have to say about Trump, which I think has always been the biggest problem for Trump, is that if Marc or Dany or Andy lied to the grand jury, we'd be prosecuted […] If any of the three of us under oath provided the grand jury with a statement that said, "We've done a thorough search. And at the conclusion of that we can represent that this is all of the classified information that is in former President Trump's possession," if you could prove that that was a knowing lie, and it certainly looks like there's pretty strong evidence of that, we'd be prosecuted. And that's a detail that's a serious offense in and of itself that is not in the Biden column.
But isn’t Biden just “investigating” himself?
AM: [T]here's not a hostile relationship between the Biden Justice Department and Biden, so they're allowing him to do things that they would never allow Trump to do under these circumstances, which is have people, not only people who are his representatives, rather than the FBI or the National Archives, but people who don't even have security clearances are apparently being able to look in these locations and see if there's more classified documents. So they're not putting Biden in a position where he's making representations to a grand jury and they're not putting him in a position where they're doing search warrants on his house. But all that said, lying to a grand jury is a pretty serious thing and that to me is the biggest divider between the two cases.
So DJT is off to the slammer?
AM: I don't think ultimately Trump is going to get prosecuted. If you would ask me two weeks ago, I would've said like 11 chances out of 10 he's going to be prosecuted because the Justice Department was doing all the things that you would do if you were going to bring a case like this. I think with these developments it becomes politically very difficult to do it. But if he is going to be prosecuted, the reason's going to be that they lied to the grand jury and that they did this in a very deliberate way.
Let’s talk about classified information. Can’t POTUS declassify anything?
AM: So I had a very executive supremacist view of all of this, at least going in. That was my presumption about it. But I'm not even sure anymore, Dany, if it's accurate to say that there's no statutory law on this. Because if you look at the Presidential Records Act, it says that even ministerial functions of a presidency are supposed to be reduced to writing, and there's supposed to be a documentary evidence for the activities of the presidency. It says that right in the Presidential Record Act. So it certainly seems like if you're going to declassify documents, and there is government procedure. The issue here of course is whether it applies to the President or not, but there is procedure in government for how you declassify things.
And there is a Second Circuit case where basically the claimant said that information was no longer covered by FOIA, the Freedom of Information Act because Trump had tweeted about it and therefore implicitly had declassified it. And the Second Circuit said, "No, no, no, you don't declassify by tweet. There's a procedure in government for declassification." And there's no evidence that it was followed here.
Now obviously it's a very different situation to tell a claimant on the FOIA that something isn't declassified because the procedure hasn't been followed. And to say that if the President says it, that he has to follow the procedure as well. But I do think a fair reading of the Presidential Records Act suggests that you would have to do something affirmative and something documentary to declassify information.
If I were to predict what the Supreme Court would do with this, I would say that they would probably say that Congress had the power constitutionally to make that requirement because it doesn't interfere with the President's ability to declassify. It doesn't say that there's any infringement by Congress on the President's capacity to declassify whatever the hell he wants to declassify. All it is is a prescription of the form in which the action has to take place. And I think the majority of the court would probably say that was within Congress's province to do that.
So Trump probably didn’t “declassify” anything a priori?
AM: I'm kind of swayed by Bill Barr's point on all this and I have been from the beginning, which is it seems to me that if Trump did declassify stuff in a sweeping way just so he could keep it down at Mar-a-Lago, in many ways that would be more scandalous than merely holding the documents down there, whether they were classified or not. I mean to declassify them just so he would have a criminal defense would not make the country any less vulnerable to what would happen if that highly potentially catastrophic in the sense if it gets into the wrong hands, it's catastrophic for national security purposes. That's got nothing to do with whether Trump says abracadabra and things get then declassified. Right? It's still a major, major problem. […] But some of the stuff that gets the President, and Marc, no one knows this better than you do, some of stuff that gets the President really is a heavy-duty top secret compartmented stuff that only people with a need to know are supposed to see. And if you're cavalier with that kind of information because you have the ability to declassify, I don't think ever had a President who took that position before.
But this isn’t really a problem for the courts, is it…?
AM: Yeah, I'm really glad you said that because one of the things that I think has been really lost in this whole controversy is the framer's idea for how you check executive excess is Congress. It's not prosecutors who work for the President. So if I were the Republicans in Congress, I would be very aggressive investigating this now and I would not tolerate being told that you're interfering with the work of the special council 'cause I just got, as we all did, we just watched two years or close to two years of the January 6th Committee where they didn't care a fig if what they were doing had consequences for what the Justice Department was trying to do on the Capitol riot prosecution.
One of their primetime extravagances took place at the same time right in the middle of Steve Bannon's criminal trial. I mean now I'm not carrying a brief for Bannon, but if the shoe were on the other foot, they'd be screaming bloody murder that a Republican controlled committee was interfering with the administration of justice in a way that was bound to prejudice that trial. So I wouldn't be very tolerant if I were the Republicans right now for being told that you can't subpoena information and you can't talk to witnesses now because we have to let the prosecutors who work for Biden do their work
Let’s not forget about Joe Biden. He’s being praised in the MSM for self reporting…?
AM: I don't know if it was in The Times or just on Twitter, but this whole idea that Biden out of the goodness of his heart, once these documents were discovered, they self-reported. Maybe that's true, and I hope it is true. And if it is true, great, credit to him for doing that because you could easily see where they could have discarded or destroyed that information and no one would ever have been the wiser. But as I said at the beginning, there's a lot we don't know about this. And it seems to me part of what we don't know is exactly how the documents got to the places where they have been located.
And is it possible that they self-reported because they knew somebody would figure this out eventually and it would be even worse for them if they had destroyed the documents? So I'm not quite ready to canonize Joe Biden just yet for self-reporting.
Any chance Biden faces prosecution?
AM: I don't think he'll be charged. Obviously, the Justice Department guidance on indicting a sitting president applies. So he can't be charged under the Justice Department standards while he's still president. And there aren't either numbers or incentives there to impeach him over this. But I do think there has to be complete accountability for it. And one thing I would do if I were a Republican on, I don't know if they're going to give this to the judiciary committee or this new Jim Jordan committee or the oversight committee, but whatever committee or committees is going to look at this, I would encourage them to subpoena all of the lawyers.
But can Congress investigate during an ongoing legal process?
AM: There seems to be a lot of misunderstanding among people, which is quite intentional when politicians and the Clintons were masters of this, that you insinuate lawyers into ministerial tasks that really don't have anything to do with lawyer work or communications in the nature of attorney-client privilege. And what they always hope is that by insinuating lawyers, they'll be able to stop investigators in their tracks because they'll say, "You can't ask that because it's attorney-client privilege." And they also want to be able to say to the public, "We can't discuss this because my lawyers have advised me X, Y, or Z."
Marc: As Biden has said.
AM: Yeah. And most people are not sophisticated enough in these things. It's not that they're ignorant, this isn't their bailiwick. They don't realize that Biden could absolutely say whatever he wants to. He likes being able to say that lawyers have advised him not to because that gives sort of the patina of legitimacy to the claim that he can't discuss it. But of course he can discuss it. So one of the things I hope that they'll investigate, I hope they get smart former prosecutor types on that.
Full transcript here.
SHOWNOTES
Biden’s Classified Documents: A Timeline of What We Know So Far (TIME, January 14, 2023)
Garland Left Himself No Choice on Biden Special Counsel (Andy McCarthy, National Review, January 14, 2023)
As a New Batch of Classified Documents Emerges, Assessing Biden’s Statements about the First Batch (Andy McCarthy, National Review, January 11, 2023)
Who is Robert Hur, the special counsel leading the Biden classified documents inquiry (NPR, January 13, 2023)
From a press meeting with WH Press Sec Karine Jean-Pierre:
· Reporter: "These documents were discovered on November 2nd...this didn't become public until...more than two months later. Why was the public not informed while the White House prepared its PR response for two months?"
· KJP: "I'm not going to go beyond what the president shared yesterday."
Comer Demands Answers from NARA and Biden White House About Classified Docs Stashed at Penn Biden Center (Committee on Oversight and Accountability Press Release, January 10, 2023)
Comer: Biden’s Three Strikes Against Transparency Will Be Met with Swift Congressional Oversight (Committee on Oversight and Accountability Press Release, January 14, 2023)
House oversight chair wants more information on Biden classified documents from White House (CNN, January 15, 2023)
House GOP demands visitor logs in Biden classified docs case (AP, January 16, 2023)
Biden classified docs scandal might require new rules for visiting presidents’ private homes, lawmaker says (Fox News, January 16, 2023)
Top Dem Jeffries has ‘full faith and credit’ in President Biden amid classified documents drama (Fox, January 12, 2023)
Schiff says it’s possible national security was jeopardized with Biden documents (The Hill, January 15, 2023)
Comments regarding the Mar-a-Lago docs:
· From a joint statement Schiff and Maloney made to Politico: “We are pleased that in response to our inquiry, Director Haines has confirmed that the Intelligence Community and Department of Justice are assessing the damage caused by the improper storage of classified documents at Mar-a-Lago. The DOJ affidavit, partially unsealed yesterday, affirms our grave concern that among the documents stored at Mar-a-Lago were those that could endanger human sources. It is critical that the IC move swiftly to assess and, if necessary, to mitigate the damage done — a process that should proceed in parallel with DOJ’s criminal investigation.
o This was following the letter they both sent to DNI requesting an immediate review and damage assessment from Mar-a-Lago. The letter was obtained by CNN. CNN reports that they also wrote, “If this report is true, it is hard to overstate the national security danger that could emanate from the reckless decision to remove and retain this material” and “Even as the Justice Department’s investigation proceeds, ensuring that we take all necessary steps to protect classified information and mitigate the damage to national security done by its compromise is critically important.”
· Rep. Swalwell on MSNBC said, “Just for your viewers sake, the reason that they’re marked ‘top secret’ means that it often relates to force protection for our troops. So, information about where our troops are that we would not want anyone to know because it could put them in harm’s way. It could relate to our nuclear posture or the nuclear posture of our adversaries.”
· Rep. Goldman tweeted, “I worked alongside [Swalwell and House Intel] and we both know that Trump’s concealment of nuclear documents is a grave threat to our national security. We need bold leaders in Congress with deep understanding of the risks facing our democracy and national security.”
· Sen. Elizabeth Warren said on CNN that “I am deeply alarmed by what we’re learning because it’s not only about whether or not Donald Trump broke the law, but it’s that he could be putting our national security at risk.”
Republicans decry ‘double standard’ in handling of Biden classified documents case (The Hill, January 16, 2023)when’s the FBI raid?” Rep. Darrell Issa (R-Calif.) wrote on Twitter Thursday.
Prominent Senate Dem says Biden classified docs ‘embarrassing’ after past Trump condemnation (Fox News, January 16, 2023)
Biden’s Classification Crisis Goes from Bad to Worse (Top Secret Umbra substack, January 13, 2023)
Document Scandal Puts Biden on Defense (Washington Free Beacon, January 13, 2023)
Presidents and Their Prosecutors (NYT, January 13, 2023)
How Russiagate Was Used to Justify FBI Election Interference (National Review, December 10, 2022)