The Big Difference

[ Posted Thursday, January 12th, 2023 – 16:55 UTC ]

Attorney General Merrick Garland has now announced the appointment of a special counsel to look into President Joe Biden's apparent mishandling of classified documents. This bombshell hit the political world earlier today and everyone has been furiously reacting ever since. Personally, when we first heard the news (earlier in the week) that an organization that Biden created (after he left office as Barack Obama's vice president) had turned over classified documents to the National Archives, we took a "wait and see" approach to writing about it. Now that the other shoe has dropped in a dramatic way, though, it's time for some reactions.

Of course, Republicans welcomed the news with glee. Now they could attempt to draw parallels with Donald Trump's retention of classified documents and essentially make the argument: "See, it's no big deal, everybody does it!" They hope to muddy the waters enough to distract the public before we get to the conclusion of the investigation into Trump's actions (and, more damning, inaction) concerning classified documents.

The parallels the GOP is attempting to draw aren't all that parallel, of course. Plenty of other people have written about the differences between the two cases, which mostly boil down to the reactions and actions of those involved. When Biden's team discovered the documents, they immediately called up the National Archives to inform them of the fact, and then they promptly returned the documents. Next, they voluntarily did a more-thorough search of Biden's various workspaces and discovered a few more -- which they also promptly turned over, in December. And this week they did an even-more-exhaustive search of Biden's papers and discovered one more that they had missed earlier. All told, this involved (from the reporting so far) somewhere in the neighborhood of 15 documents, total. They have cooperated with both the National Archives and the Department of Justice the entire time.

Team Trump, on the other hand, did none of these things. The documents Trump had taken with him were officially requested by the National Archives, right after he left office. Trump's lawyers stonewalled and delayed this request for almost an entire year. They did turn over boxes and boxes of documents at this point, but the government was convinced they hadn't turned over everything. So they issued a subpoena for the rest of them. Trump's people then turned over some more classified documents, and signed a piece of paper stating that this was all of them. Further evidence came to light, and the Justice Department got a judge to sign off on a search warrant, which was executed at Trump's Florida golf resort. Which found more than 100 more classified documents. Once Trump announced he was running for president, the attorney general appointed a special counsel.

You'll note the obvious differences. But what's going largely unremarked-upon today is one similarity: the correct process was followed in both cases. Special counsels are appointed whenever any case could have major political ramifications, to insulate the attorney general (to a certain extent) from political decisions. In Trump's case, Garland bent over backwards to avoid having to appoint a special counsel (because it would have been seen as escalating the prominence of the case), whereas in Biden's case, Garland acted swiftly. This has taken the wind out of the sails of the Republican storyline that had been emerging since the first news broke, because Republicans have been loudly demanding exactly what just happened. Their talking point: "The Justice Department has been politicized and weaponized against Trump -- where is Biden's special counsel?!?" has now been defused.

Nobody should minimize the importance of today's actions either. When the Biden people contacted the National Archives and the Justice Department was informed (back in November), Garland appointed a U.S. attorney to look into it and made a point of assigning it to a person Trump himself had appointed. This was meant to further depoliticize the process. That attorney reported back to Garland and told him he thought a special counsel was indeed necessary. If there was nothing amiss at all -- if this was a straightforward case of perhaps a few relatively low-level government secrets (a few emails that might have been overclassified in the first place, perhaps) and there was not even a whiff of any wrongdoing -- then a special counsel would not have been the appropriate next action for the Justice Department to take. The fact that a special counsel has now been appointed means there is at least an indication of actual wrongdoing -- that laws were intentionally broken. Which is pretty serious.

We have no idea what all this means, but then again neither does anyone else (who is not actively working on the case). Details (or rumors) will doubtlessly leak out soon to the media, so we all may have more information on this in a short period of time; but at the moment, it is anyone's guess what prompted the appointment of the special counsel.

Democrats, at least so far, seem to be taking it in stride. In and of itself, this is an enormous difference between the parties, because most Democrats actually believe in the rule of law and that crimes should be punished. Republicans used to (or at least they used to make a lot of political hay insisting that they did), but they no longer have any credible way to make this claim. When Trump's property was searched, most Republicans went ballistic and began attacking the Justice Department. My guess is that precisely zero Democrats are going to react the same way to today's news. They will not gnash their teeth and rend their garments on cable news. They will not insist -- while not knowing any of the relevant facts of the case -- that their guy is innocent and that the whole thing is a witch hunt. They will not call for political violence in response.

Republicans are (as usual) being hypocrites or just downright incomprehensible. Trump's retention of classified documents was no big deal, everyone does it, and certainly not a crime... but Biden's retention of classified documents is now the worst, ugliest crime imaginable? Trump should be exonerated while Biden should be impeached? Excuse me? I guess consistency isn't their strong point, but then again it never was.

How this all plays out politically may depend on timing. How long will it be before either special counsel either brings charges or announces that no charges will be brought? Which one will finish first? And how close will it all be to the 2024 presidential election, which could conceivably pit the two men against each other for a rematch?

There's no way to tell, at least at this point. The special counsel looking into Trump, Jack Smith, has had a head-start. He's been on the job since November. However, he's not just looking into Trump's mishandling of classified materials, he's also looking at January 6th and whole slew of other possible crimes. He may decide to wait until all of these investigations are complete before he takes any public action at all. Whereas the special counsel looking into Biden, Robert Hur, seems to have a much simpler case to examine. There hasn't been even the slightest hint of Biden or anyone connected to him trying to prevent the documents from being returned to their rightful owners (the American people). They've been pro-active in this regard, at least from what is publicly known at this point. So even if crimes have been committed, they are probably fairly simple crimes to identify and make decisions about. Which means that the investigation into Biden's papers may conclude before the investigation into Trump's papers. Or it could happen the other way around -- there's simply no way to tell. Just as there is no real way to tell when any of this could happen. It could happen next week, or it could take months.

What charges will be brought, and against whom? That is going to be crucial to gauging the political fallout of both investigations, of course. And please remember that no matter what crimes are charged and against how many people, that will only be the beginning of the courtroom case(s). Getting all the way to sitting a jury and trying such a case may take a very long time indeed. Meanwhile, the presidential election may be in full swing.

Republicans are going to try to use the whole thing to insist everyone see everything through the lens of both-sides-ism and/or whataboutism (choose your portmanteau). "See? Biden did it too!" they'll insist, repeatedly and loudly. They will also attempt to use this to weaken Biden politically, which (if it catches on) could have a major political effect. Democrats may start to doubt whether Biden is really the best choice to lead their presidential ticket again in 2024 (this sentiment had been rising before the midterms, but has dampened down considerably since the Democrats avoided the "red wave"). Being attached to a scandal (with even nebulous parallels to Trump) could be seen as a real impediment, politically-speaking. Biden himself may actually be forced to have some second thoughts about announcing his upcoming re-election bid (which, before all this news broke, seemed rather imminent -- many were predicting he'd do so right around when he gives this year's State Of The Union address to Congress).

Of course, we're still in the middle of the whirlwind. Few details are known. More will soon (assumably) be uncovered by the media, which will give the public more information to weigh what really happened. Biden himself is almost certainly going to have to give a public explanation of what happened, and he's already indicated he's preparing to do so soon. What he says and how it all plays with the public will be critical. But one thing is absolutely certain -- Joe Biden will not start throwing a tantrum and attacking his own attorney general or using the term "witch hunt." Merrick Garland won't be suddenly fired. Playground insults will not be flung. There are certainly all kinds of differences between what Trump did and what Biden did, but that will be one of the biggest -- how they personally react.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


17 Comments on “The Big Difference”

  1. [1] 
    Elizabeth Miller wrote:

    Special counsels are appointed whenever any case could have major political ramifications, to insulate the attorney general (to a certain extent) from political decisions.

    So far, so good. But, then ...

    The fact that a special counsel has now been appointed means there is at least an indication of actual wrongdoing -- that laws were intentionally broken. Which is pretty serious.

    So, I'm a bit confused. Is appointing a SC in the Biden case just what's done to avoid the appearance of politicization or did Biden intentionally break the law?

  2. [2] 
    andygaus wrote:

    Beau of the Fifth Column has the simplest explanation anyone can use to explain the difference to any person who might listen:
    The most serious crime is not simply possession of classified documents, but willful retention of classified documents. So ask in each case whether Trump's actions on the one hand or Biden's on the other constitute willful retention.

  3. [3] 
    MtnCaddy wrote:

    I doubt Joe or his people intentionally committed any crimes so methinks a Special Counsel is being appointed out of an abundance of caution.

    Unless it proves otherwise this will NOT make the Dems dump Joe. Disregard all the usual hand-wringing and self soiling from some Dems.

    On the other hand, both Trump and Biden under indictment rolling into 2024 might solve a perceived undesirably problem for BOTH parties.

  4. [4] 
    MtnCaddy wrote:


    Here’s that Beau link you referenced. (4:51)

  5. [5] 
    MtnCaddy wrote:

    …perceived candidate undesirability…

  6. [6] 
    andygaus wrote:

    [4] Thanks for the link and doing my research for me.

  7. [7] 
    Mezzomamma wrote:

    I hope a sensible person is quietly looking into the procedures for handling sensitive documents, and specifically into procedures for ensuring and logging their return. It looks as though there is room for improvement, even if nothing is likely to entirely overcome deliberate chaos and malice of the sort Trump generated.

  8. [8] 
    MtnCaddy wrote:


    [13] ?Elizabeth Miller wrote:

    Except for this small note of explanation ... you know, in the name of all of your extensive researching efforts. :)?Sweden and Finland joining NATO is not in the same universe of ideas as Ukraine being a member of NATO, not by any stretch of imagination.

    If Putin invaded Ukraine to keep NATO off it’s borders, please explain “not in the universe of ideas.” What’s the difference between NATO in Ukraine versus in the Baltics and now in Finland and Sweden??

    [14] ??

    One more thing ... just quite recently got my first smartphone and I will never, ever use it to tap out comments on a blog, here or anywhere else! Why do you do that!?

    Because I don’t have a tablet, laptop or desktop.

  9. [9] 
    John From Censornati wrote:

    Oh yay! A third "batch".

  10. [10] 
    Bleyd wrote:

    What I want to know is, why was it that the archives hadn't requested those documents back from Biden in the nearly 6 years since he'd left office before they were found and turned over? The archives knew about missing documents and were requesting them back from Trump almost immediately after he left office, but seemingly never noticed the missing Biden documents, as by all accounts, they never requested anything back from Biden, despite significantly more time passing. Was there something different between the documents being retained? Was it merely because of the quantity of documents? Or was three something different between the two men that gave the archives reason to look more closely at Trump's documents than Biden's? Just seems odd to me.

  11. [11] 
    Elizabeth Miller wrote:

    Caddy, I'll answer you back on the PC. :) This column is about a whole other Biden mistake. Heh.

  12. [12] 
    Elizabeth Miller wrote:


    When it comes to Biden's mishandling of classified documents, it's really only all about being hoisted on your own petard and being careful about making a mountain out of a molehill ... 'cause ya know it can all come back at any time to bite ya in the ass, as they say. :)

    I think Biden is relearning both lessons!

    How many classified documents do you suppose are currently collecting dust in any number of presidential libraries and the like ... really hoping we don't find out. :-)

  13. [13] 
    MtnCaddy wrote:

    Actually, we DO want to know in order to most effectively change the handling of said material both during (no flushing down the commode) and after (two Presidents…and counting) leaving office.

    Safeguard our secrets National Security blah blah blah.

  14. [14] 
    MtnCaddy wrote:


    …it's really only all about being hoisted on your own petard and being careful about making a mountain out of a molehill ... 'cause ya know it can all come back at any time to bite ya in the ass, as they say. :)


    Didn’t you read the column that goes along with our Weigantia? How is Joe getting hoisted on his own petard if there’s no equivalence between his docs case and Trump’s?And am I understanding correctly that you think the Trump case is making a mountain out of a molehill?

  15. [15] 
    MtnCaddy wrote:

    Furthermore, it assumes that Biden had anything whatsoever with DoJ getting involved due to Trump’s unlawful removal and retention of materials our law says he has NO right to.

    Respectfully, you are usually far more sophisticated in your reasoning. Is it your new smartphone? Is it zapping your brain with bad rays? Maybe you’re allergic, at least to Android. If so, try iPhone it’s amazing.

  16. [16] 
    MtnCaddy wrote:

    You know I love you Elizabeth, even when I’m bagging on you.

  17. [17] 
    Elizabeth Miller wrote:

    Biden, back when he was asked about Trump's mishandling of classified documents:

    ...totally irresponsible - absolutely, positively, unequivocally! How does that even happen!? How can one person be so completely irresponsible as to mishandle classified documents?


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