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Filegate: The Sequel?

The year is just over a week old, and we already have our first major "unknown unknown." It would seem that Donald Trump isn't the only member of the executive branch who took his classified work home with him. Yesterday, the news broke that several classified documents, including some with the "sensitive compartmented information" designation, were discovered in the University of Pennsylvania office used by Joe Biden in the interregnum between his vice presidency and his presidency.

Inasmuch as this is a developing story, there is much that is still not clear, most obviously the exact contents of the documents. Still, the broad outlines have already taken shape. The number of documents was small—less than a dozen—and they were discovered by Biden's attorneys as they cleaned out the President's now-former office. They were found on Nov. 2, the National Archives was notified that day, and the documents were returned to the government the next morning. The Department of Justice has launched an investigation, with the U.S. Attorney in Chicago, John Lausch Jr., taking the lead. However, the DoJ has said that it believes this was accidental, and no crime was committed.

At this point, it is probably useful to review 18 U.S. Code 2071, which reads:

(a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.

(b) Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term "office" does not include the office held by any person as a retired officer of the Armed Forces of the United States.

If you take only the shallowest of glances, it appears that the Biden and Donald Trump classified document situations are similar. However, assuming that the basic facts that have been reported about the Biden case are correct, then the two situations aren't really the same at all. A lot of people have access to classified information, and people, as you may have heard, make mistakes. The government can't be putting staffers in prison if they leave a laptop with classified information in their cars and their car gets stolen, or if they are careless when putting file folders in their briefcase at the end of the day, or if a USB stick falls out of their pocket in the bathroom. And so, while such carelessness might get someone a stern talking to, and might even lead to some sort of administrative sanctions, the statutes are written such that mishandling of classified documents is only a crime if it's willful or if there is gross negligence involved.

Put another way, Joe Biden and his team did exactly what they were supposed to do once the problem was discovered. If Donald Trump, who took something like thirty times as many classified documents with him, had surrendered them as soon as they were found at Mar-a-Lago, then there would be no real issue. Certainly nothing criminal. Even if he'd surrendered the documents once the government demanded them, Trump would be in the clear. His problem was that even once the National Archives told him to pony up, Trump kept many documents, and continued to obfuscate, such that it's still not clear the government got everything back.

That said, the fact that the Biden situation and the Trump situation pretty clearly appear to be on different sides of the fence when it comes to the law isn't going to stop partisans on the right from having a field day with this. Tucker Carlson and the MAGA media are going to squeeze this for all it's worth. Presumably, there will be half a dozen congressional investigations into Biden, and into the DoJ "sitting" on the story for 2 months. Never mind that department policy is very clear on this point, and that it could not have shared this news in early November, so close to an election.

We haven't the faintest idea exactly how long the flames of this particularly controversy will burn. Will it be like Hillary Clinton's e-mails, a story that is still smoldering, 7 years later? Or will it be more like Afghanistan, a great inferno that rose rapidly and then dropped off the radar fairly quickly? We tend to assume the former, since this story will allow the MAGA types to muddy the waters when it comes to Trump's own legal problems. But that's just a guess.

And that brings us to, perhaps, the most important dynamic in play here. It is inconceivable, barring new revelations, that Biden or anyone in his orbit will be indicted for this. They all appear to have followed the law to the letter, and of course DoJ policy forbids filing charges against a sitting president. However, when it comes time for AG Merrick Garland to make a call on indicting Trump, might this incident influence his thinking? It really shouldn't; justice is blind, and the DoJ is not supposed to concern itself with politics. However, if it's a very close call on whether or not to indict Trump for mishandling documents, it is at least possible that this situation will be the tiebreaker, and that Garland could decide that the potential hit to his department's reputation (How come Trump and not Biden?) isn't worth it. (Z)

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