America is certainly an exceptional country. That was proven again last week. President Joe Biden, without authority or reason, mishandled classified documents. A small number, probably around twenty, had been found in his offices at the Penn-Biden Centers; in his Delaware home, and in his 1967 Corvette parked in a locked garage. How could or did this happen after the Trump fiasco and the FBI search of the former president’s Mar-a-Lago home in Florida? Trump, of course, operating from Alice’s Wonderland, claimed the highly classified documents belonged to him. And even more bizarrely asserted he could declassify documents just by “thinking about it.” In the real world, that borders on political insanity.
About Biden, was he careless, inadvertent, incompetent, or just inept? The answer was all four. As a result, the current and last US president is very likely guilty of breaking the law regarding unauthorized possession of classified material. That conclusion cannot be in doubt even though two special counsels will conduct in-depth investigations to confirm this finding. One difference in both cases cannot and should not be dismissed. The evidence shows that Trump and his attorneys probably committed obstruction of justice by resisting the return of documents to the government. And Trump’s attorney may have committed perjury. However, in today’s toxic politics, that distinction may make no difference. Biden’s supporters agree that this is an embarrassment and go no further. Embarrassing is when one commits a social faux pas, such as using the wrong silverware or ordering the wrong wine at a fancy dinner. Embarrassment does not apply to failing to safeguard highly classified documents. That assertion, too, is part of Wonderland. The Republicans were given a huge bonus through this unforced error much as Raven’s fumble on the Bengals’ goal line led to the winning ninety-eight-yard touchdown run in last weekend’s NFL playoffs. And that bonus will be put to good and ill use. Given the Biden blunder, is it possible to prosecute Trump? Probably not.
After the attacks of September 11th, Congress established the 9/11 Commission to investigate the events leading up to that disaster and make corrective recommendations. The report was an incisive and accurate critique that identified an intelligence community that was uncoordinated, not integrated or able to do its job to protect America. Of the nearly three dozen recommendations made by the commission, only a handful was adopted.
What should be done and what will be done? After the attacks of September 11th, Congress established the 9/11 Commission to investigate the events leading up to that disaster and make corrective recommendations. The report was an incisive and accurate critique that identified an intelligence community that was uncoordinated, not integrated or able to do its job to protect America. Of the nearly three dozen recommendations made by the commission, only a handful was adopted. And those findings were underscored when the Bush administration invaded Iraq in 2003 over weapons of mass destruction that did not exist. That said, Congress should establish a classified documents commission to investigate a system that by all accounts is not keeping this material safe. It is awash in millions of pages of documents, much of it overly classified. And, some four million Americans hold security clearances. Attorney General Merrick Garland has been handed two ticking time bombs, one for each president. On the one hand, no American is above the law. Lesser persons in this condition would have suffered prosecution. Yet, having two former presidents wearing orange jumpsuits in adjacent cells is not a likely outcome.
On the other hand, the law was broken although that will await the work of both special counsels. Assuming the evidence confirms guilt, what options does Garland have? None seems self-evident. Symmetry and fairness would suggest equal treatment is essential. However, here is where the allegation that Trump committed obstruction may come to bear. Could the Attorney General conclude that, while both Biden and Trump broke the law in unauthorized possession of classified material, no prosecution is recommended and a reprimand issued instead will suffice as punishment? That leaves the charges of obstruction and perjury. Garland could reason that prosecution is warranted above and beyond the mishandling of classified material. The upshot would be a huge Republican backlash claiming political motivations to disgrace the former president even though those charges could be valid and sustained in court.
No matter what Garland decides, one observation is unarguable if not unduly cynical. America is certainly exceptional in this case. That a former British Prime Minister or a head of another democratic government might be caught in a similar situation would seem inconceivable. But regarding Vice Presidents Mike Pence and Kamala Harris, should one double-check? The answer is yes.
The writer is a senior advisor at Washington, DC’s Atlantic Council and a published author.