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Today Attorney General Merrick Garland announced the appointment of a special counsel to investigate Biden’s handling of classified material. This move was pretty much inevitable after it emerged that Biden was facing questions which bear a superficial similarity to some of those currently dogging Donald Trump. Because the Department of Justice has to investigate any apparent mishandling of classified documents, Garland needed a way to insulate himself from accusations that he interfered in an investigation into his boss, Joe Biden. The point of a special counsel is that they are given the resources and leeway to run a sensitive investigation without day-to-day oversight from DOJ, which is supposed to mean they operate free of political interference.
Although the appointment of the special counsel is certainly a headache for Biden, it would be wrong to criticize Garland too much for it. It wouldn’t have been tenable for Garland to handle the matter any other way, particularly after a second batch of documents were found in Biden’s private garage in Delaware. It’s also wrong to imply that Biden is now in the same situation as Trump - in fact, the two cases are radically different, and likely to end differently. In the spirit of the six thoughts I offered when a special counsel was appointed in the Trump case, here are six about Garland’s latest move:
The Trump and Biden cases are very different. It’s certainly not good practice, but also not uncommon, for someone to accidentally take classified material with them after they leave office. When it happens, the person involved usually gives it back, and DOJ doesn’t bring any charges. Trump, on the other hand, appears to have engaged in a wilful pattern of deception and obstruction - refusing to give material back and lying about how much of it he still had. This is exactly the sort of case in which DOJ does bring charges related to the handling of classified material. It’s also worth noting that the Trump counsel is also investigating other matters, such as the little matter of Trump trying to steal an election - and that part of the investigation seems to be hotting up.
Based on the publicly known facts, charges appear unlikely in the Biden case - but new things might emerge. There are a few fishy things about the Biden case. The first is why it took DOJ more than two months to announce that the first batch of documents had been found on November 2nd, shortly before the midterm elections. The second is why lawyers only just searched Biden’s home and found yet more documents. But given that Biden has willingly handed the documents back upon discovering them, charges appear unlikely unless the facts radically change. Just because there’s a special counsel doesn’t mean there will be fireworks.
This might ultimately take political heat off Biden. If the special counsel ultimately concludes the investigation without charging anyone and/or just gives Biden a verbal slap on the wrist, the political damage to Biden will likely be limited. Many more questions would have been raised if DOJ had overseen the investigation itself. The existence of the special counsel will also complicate attempts by Congressional Republicans to launch their own investigation and make a circus out of it. The man Garland appointed to oversee the case is Robert Hur, a Trump-appointed district attorney who clerked for the conservative judge William Rehnquist. It will be hard to recast him as a deep state patsy who schemed to let Biden off the hook, and attempts by the Congressional GOP to do so will backfire.
Caveat: sometimes special counsels can stray beyond their remit. I must admit that I know precious little about Hur. But it’s unlikely Garland would have appointed him if he was a fire-breathing Biden-hater. Proceeding on the assumption that he’s a straight shooter, he still might broaden his inquiry into other areas of Biden’s affairs, depending on what he finds. That could lead in unpredictable directions.
This will launch a wave of both-sides-ism. Despite the huge differences between the Trump and Biden cases, Trump supporters will now work feverishly to somehow cast Biden’s actions as worse, and anti-anti-Trumpers will ignore what Trump did and spend a lot of time criticizing Biden. There will be so much media noise generated over this issue - and so much of it will be infuriating - that it will be easy to go insane. Nevertheless I think Aaron Rupar has it broadly right - this was a bad mistake by Biden:
This might give DOJ political cover to indict Trump. The fact that Garland has dealt even-handedly with these two cases, appointing a counsel for each, might actually make it easier for DOJ to indict Trump if charges are recommended in his case. “How can you accuse me of partisanship?” Garland can say. “I put a Trump-appointed DA in charge of investigating Biden!”.
Those are my quick thoughts the night of the news. It’ll be interesting to see what emerges about Hur as he becomes a subject of intense media attention in the coming days, and to also hear from him and see what sort of operation he runs. I’ll check back in on these topics when we know more.
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