When classified documents appeared in President Biden’s former office, his Delaware home and the garage housing his Corvette, the political impact was predictable. Republicans gleefully charged Biden with the same offense that prompted the FBI to raid former President Trump’s estate in Florida last August.
Newly minted Republican chairmen of two House committees have announced investigations into Biden — but not Trump or former Vice President Mike Pence, who confessed he too found classified documents in his home. Democrats lamented that Biden and his staff squandered high morals.
The differences between the cases are significant. Trump took home hundreds of classified documents; Biden a much smaller number, assuming he no longer runs. Trump resisted returning documents to government; Biden’s lawyers returned them quickly. Trump seems to have kept documents on purpose; Biden aides say his mistakes were unintentional.
Yet the impact of the Biden documents will likely extend beyond whataboutism and congressional hearings. Former prosecutors say the findings will make it harder for Jack Smith, the special prosecutor investigating Trump, to indict the former president for his Mar-a-Lago misdeeds.
“It complicates things,” warned Donald Ayer, who was a senior Justice Department official in the George HW Bush administration. “It would take a tin ear for Jack Smith to bring an indictment soon in the Mar-a-Lago case.”
In theory, perhaps, one investigation shouldn’t affect the other. But these are not trivial cases. They involve a president, a former president and a former vice president – all three of whom appear to be running for president in 2024.
On a practical level, the Biden and Pence cases could make it more difficult to secure a conviction against Trump — and it could make Smith, the special counsel, reluctant to file an indictment.
Under Justice Department regulations, a prosecutor must determine whether the evidence in a case is strong enough to secure a jury conviction. The fact that Trump is not the only former official to have brought classified documents home will be significant.
“It will inevitably affect a jury; they will wonder why the government is not prosecuting Joe Biden,” said Paul Rosenzweig, another former Justice Department official. “A prosecutor doesn’t want to go to trial and lose.”
On a higher plane, Atty. General Merrick Garland wants to appear impartial, especially if a prosecutor he appointed is considering the unprecedented step of indicting a former president.
“We don’t have different rules for Democrats or Republicans,” Garland said last week. “We apply the facts and the law in each case in a neutral and non-partisan manner.”
That’s why he appointed a second special counsel, Robert K. Hur, to investigate the Biden documents.
But that didn’t solve the problem.
If Smith indicts Trump, but Hur does not indict Biden, Trump supporters will inevitably charge that a double standard is at work. Many of them will believe it.
It won’t just be die-hard Trumpists who will be troubled. The spectacle of Biden’s Justice Department pursuing his predecessor would baffle many who dislike Trump.
In an ideal world, both prosecutors could report their findings and explain their decisions at the same time, so we could compare the two cases side by side.
But the two special advocates are meant to operate independently, without day-to-day supervision from the Justice Department. There is no mechanism for them to coordinate their decisions.
“Neither special advocate will be able to explain how their decisions are consistent with those of the other,” Jack Goldsmith of Harvard Law School wrote last week in The New York Times. “Nor can the Attorney General obviously do so, since key decisions are formally beyond his control.”
Even if both special advocates wanted to report simultaneously, the timing of their cases might get in the way. The FBI has been investigating Trump’s Mar-a-Lago documents for nearly a year. The investigation into the Biden documents, on the other hand, only began a few weeks ago.
Special advocates generally have the luxury of working without a fixed deadline. But it is in the public interest to resolve these cases before voters start choosing candidates for the 2024 presidential election.
“Time is running out,” Rosenzweig noted. But in the Biden case, “Hur won’t be done until the fourth quarter of this year. It can’t be done any faster.”
Garland cannot control the prosecutors’ schedule — at least not without violating the principle that they are meant to be independent of the attorney general.
But both cases could still end up on his desk. So will the burden of explaining to the Americans why the result was right. If Garland was hoping that the appointment of special advocates would bail him out, it seems he was mistaken.
This story originally appeared in the Los Angeles Times.