Distinguishing Cases: Classified Documents Edition

One of the most important skills that law students have to learn is to distinguish cases.  One of the most important skills a politician can learn is to refuse to do so. 

If a politician from your party is accused of wrongdoing, you find some similar thing that some prominent politician from the other party has done, and then play the whatabout . . . game.  So George Santos embellished his resume a bit. Politicians always exaggerate their accomplishments. 

Whataboutism may be good politics, but it is terrible lawyering, and franking terrible on the whole.  I am moved to write today because our culture is so suffused by the refusal to distinguish cases, I fear that my students are losing that legal skills, and so I want to illustrate how it works in a prominent case.

In general, don't defend your guy because he's your guy.  If the only way you can defend a politician you like is by comparing them to a politician you hate, maybe you should just concede that the politician you like has done something you hate and then explain why you are willing to move past it, which is not the same as excusing it.

And let's be clear.  It is always a bad thing when public figures lie about or intentionally exaggerate their accomplishments.  I am not inclined to be forgiving in this area.  I still remember Joe Biden's lies about his background when he pretended to be Neil Kinnock while  running for President thirty years ago.  My sense of the man will always be diminished as a result.  And I can't fathom it.  Unlike George Santos, Joe Biden was already a Senator when he invented a backstory for himself.  There was no need for him to pretend to be anybody other than who he was.  For the record, I thought Bill Clinton should have resigned after the Monica Lewinsky revelations and, were I a Senator (imagine that!), I would have voted to impeach him (and maybe that's why I'll never be a Senator).  I thought Al Franken was a terrific Senator, but the allegations against him made it impossible for him to serve.  I'm glad he resigned, even though there are numerous others still in office who have faced far worse allegations.  No elected official is indispensable.  Al Franken has found other ways to further the causes he supports, and Minnesota has a new, like-minded Senator, who did not engage in juvenile antics that demean women.  

Now turning to the matter at hand: if you are inclined to think that Donald Trump and Joe Biden are equally culpable for their possession of classified documents, this article from Archie Bland in The Guardian does a decent job of distinguishing the cases, based on what we know thus far.  Here's the bottom line:

In truth, though, it’s not that complicated to understand why the stories matter, how they’re similar – and the much more significant ways in which they’re different. . . .  Spoiler: Trump’s is worse.

I would add, much, much worse.  Mr. Biden's case is indicative of privilege accompanied by a level of carelessness or inattention that is simply inexcusable in a high-level official and in their staff.  With the Mike Pence revelations, it remains to be seen how common an occurrence we are talking about.  If Mr. Biden's carelessness is highly unusual, and if the documents in his possession are revealed to be highly sensitive, Congress would not, in my view, be out of line in considering impeachment.  If elected officials and/or cabinet members routinely take classified documents home with them or to their private offices, then we have a systemic problem, which is a separate issue from the well-known problem of over-classification, a topic I have touched on in my scholarship on the state secrets privilege.  While both Mr. Biden and Mr. Pence are guilty of mishandling classified material, it seems pretty clear (based on what we know so far) that neither was knowingly engaged in wrongful conduct, and neither seems to have had any wrongful intent.  By contrast, Mr. Trump's conduct throughout this process has been shot through with non-trivial illegality and with indicia of criminal motive.

The Guardian breaks things down according to the scale of the discoveries, the response to them, and the consequences.  I'm going to get into the weeds a bit for those who want to follow after the break, and I will also take the Guardian to task a bit for failing to highlight salient ways in which Mr. Trump's conduct is distinguishable from that of Mr. Biden.

First, as to scale, based on what we know thus far, Mr. Trump's trove of classified and other government documents was far larger than those found in possession of Biden (or Pence, for what that's worth).  Initially, two years after Mr. Trump left office, the National Archives recovered fifteen boxes of documents from Mar-a-Lago.  Those boxes, all of which contained documents that were the property of the United States and not of Mr. Trump, included 700 pages of classified materials.  Five months later, Mr. Trump's attorneys handed over 38 additional classified documents.   Mr. Trump and his attorneys then claimed that he had no further documents, but there was good reason to suspect otherwise.  The FBI executed a lawful search warrant and recovered an additional 103 classified documents.  The Guardian calls this search a "raid," but that is not what we usually call a search conducted pursuant to a lawful warrant.  At least two more classified documents were found in a second search. 

Mr. Biden, through his attorneys, turned over 20 classified documents discovered at his office and residence.  An FBI search (which also was not a raid) turned up six additional documents in Mr. Biden's home.  A search of his vacation home yielded no additional discoveries.

As to the response, Mr. Trump held onto documents for fifteen months after the National Archives requested their return.  When he returned some documents, there was evidence that they had been mishandled and intermixed with other documents.  When attempts to negotiate a return of additional documents broke down, the FBI executed its warrant, discovering more documents, as well as evidence that some documents had been concealed and removed.  That, my friends, is a strong indicator of obstruction of justice. 

Mr. Biden, by contrast, immediately turned over all the documents that he knew he possessed and seems to have cooperated fully with further searches of his property.  The only problem with the Biden response was that the discovery was not disclosed.  Frankly, it is pathetic for anybody to pretend that they are surprised our outraged that the President did not go public with embarrassing information on the eve of mid-term elections.  No administration would do that, and the FBI shouldn't do it.  James Comey made a huge, unforgivable error in going public with allegations against Hillary Clinton on the eve of the 2016 elections.  Even he knows that.  In the end, Mr. Comey concluded that there had been no serious illegality in connection with Ms. Clinton's handling of e-mails, but by then, the harm was irreparable.  Even if the special counsel investigating Mr. Biden finds  grounds to pursue criminal prosecution, there is no reason to go public early with unsubstantiated allegations, as Mr. Comey eventually learned.

The Guardian goes off the rails unfortunately when it comes to describing the consequences.  Special prosecutors have been appointed to look into both cases, and so the Guardian leaves its discussion of consequences open-ended, notwithstanding a final paragraph reminding readers that “a balanced treatment of an unbalanced phenomenon distorts reality.” 

The FBI executed its warrant because it had reason to believe that Mr. Trump was guilty of numerous federal statutes, violation of which is punishable by imprisonment for up to 20 years.  These include 18 U.S.C. § 2071, which covers intentional concealment or destruction of government documents; 18 U.S.C. § 793(e), which covers unauthorized possession of government documents and intention to share the information contained therein to the detriment of the United States; and 18 U.S.C. § 1519, which covers intentional concealment or destruction of government documents in an attempt to obstruct justice.  No such criminal violations have been alleged in connection with the discoveries of materials in Mr. Biden's possession.  There is an ongoing investigation, but based on Mr. Biden's response to the discovery of classified materials in his possession, it seems unlikely that Mr. Biden committed wrongful acts with a wrongful intention (scienter), a necessary predicate to criminal charges. 

With Mr. Trump, on the contrary, indicia of wrongful intention abound.  For example, you can read his attorney's letter appended to the FBI's affidavit in support of its request for a warrant.  Mr. Trump has claimed that the FBI planted documents, that the documents are subject to executive privilege, that he declassified the documents, and that a President can declassify documents just by thinking that they are declassified.   Some of these claims are so absurd, his lawyers would not even raise them in court.  Or to put it less kindly, even his lawyers would not raise them in court.  The Executive Privilege argument, while not laughable, is pretty close to laughable, as discussed here.   The arguments relating to classification are, in any case, irrelevant, as the crimes that Mr. Trump may have committed have nothing to do with his possession of classified materials.  It was illegal for him to retain as his own possession documents that belong in the National Archive.

Mr. Trump has been out of office for over two years.  He has no rightful claim to the documents found in his possession.  He never did.  And yet he held on to them and refuses to give any truthful account as to why he had them and to what purpose.  He did not turn over documents when asked, mishandled them, did not secure them properly, and may have destroyed or concealed them.  A special prosecutor has been appointed.  Some of his attorneys are already cooperating with the authorities.  Prosecutors may offer immunity to get cooperation from others.  Nothing is certain because it is all so unprecedented, but it seems pretty likely that somebody is going to be charged in connection with this investigation.  It just might not be Mr. Trump.