It’s easy to forget that the total number of known classified documents now found at President Joe Biden’s former private office at the Penn-Biden Center and at his private residence in Delaware appears to be very small. This is especially in comparison to the more than 300 classified documents former President Donald Trump had at Mar-a-Lago, plus the additional ones found at a West Palm Beach storage unit used by Trump.
It’s also easy to forget that Biden’s representatives have repeatedly and immediately turned over documents they found. In contrast, Trump refused to return classified documents in his possession despite months of requests from the National Archives, a grand jury subpoena issued at the Justice Department’s request, and a visit to Mar-a-Lago from DOJ officials. Trump also raised bogus arguments about his ability to declassify documents merely by thinking about them—despite the fact that neither he nor his attorneys ever identified a single document that he had supposedly declassified.
The months-long debacle of Trump gumming up the DOJ investigation into the documents he had withheld, by convincing one of the judges he appointed—Judge Aileen Cannon—to baselessly appoint a special master seems also to have slipped from the media and public’s attention span.
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Biden’s legal and communications teams have no one to blame but themselves for this phenomenon of collective amnesia, because their near daily trickle of disclosures about small but previously undisclosed documents amounts to death by a thousand cuts.
Of course there is no shortage of MAGA Republicans salivating to make a false comparison between the Trump case—one of two criminal investigations being led by Special Counsel Jack Smith—and the Biden case, now under investigation by Special Counsel Robert Hur. Republicans pushing that comparison include House Majority Leader Steve Scalise, and James Comer, the new chair of the House oversight committee who is seeking visitor logs to the Biden residence.
Attorney General Merrick Garland’s arguably premature appointing of a special counsel also contributes to the false comparisons between the Biden and Trump cases. All the general public hears is that both the former and current presidents are now simply “under investigation” by special counsels.
In a likely effort to seek political cover, Garland first assigned John Lausch, a Trump holdover U.S. Attorney, to conduct a preliminary assessment of the Biden documents matter. Garland could have just as easily had the matter reviewed by DOJ’s National Security Division—or even by the U.S. Attorney for the District of Columbia, which is where the private office used by Biden is located, and whose office is handling the bulk of the Jan. 6 violence prosecutions.
Acting upon the recommendation of Lausch, Garland then chose another Trump-appointed prosecutor—Robert Hur—who also served under Trump AG Bill Barr to be the Biden special counsel.
While there is nothing in the public record suggesting that either Lausch or Hur would be biased, there is also nothing in the public record suggesting that Biden (or his staff responsible for handling his vice presidential records) did anything criminal which would have triggered Garland needing to appoint a special counsel in the first place.
Garland’s public explanation for why he appointed a special counsel emphasized “extraordinary circumstances,” which sounds like code for being worried about political criticism.
But neither Garland’s hand-wringing over being perceived as political, nor the political opportunism of the GOP, can be blamed for the Biden team’s strategic communication failure. This, more than anything, has kept the issue of how Biden handled documents at the close of his vice presidency in the mass media spotlight.
Only recently did Biden’s personal attorney, Bob Bauer, put out the statement that Biden’s aides will be leaving it to the special counsel to make most of the announcements about the case. If the Biden team had from the start made it clear they would not be speaking about the documents, because the DOJ was investigating, then they likely would have avoided many of their embarrassing series of missteps.
To their credit (as has been repeatedly pointed out), Biden’s team followed the rules exactly. Upon every discovery of documents, they notified the National Archives and DOJ and turned over the documents. They have not raised baseless arguments about Biden’s ability to declassify documents—or any “defenses” at all—because they do not need to raise a defense when there is no evidence of a crime having been committed.
Their mistakes have purely been in the realm of their communications strategy. But however politically damaging they are, messaging missteps are not crimes, and that will be the likely conclusion of the special counsel investigation, as well.
