Why Trump, not Biden, faces more peril from the new special counsel probe

Justice Department veterans tell Andrew Feinberg why the appointment of a new special counsel to investigate Joe Biden is actually bad news for Donald Trump

(Getty/AP)

Republicans who called for Attorney General Merrick Garland to name a special prosecutor to oversee a Department of Justice probe into how Obama-era documents bearing classification markings ended up at President Joe Biden’s Delaware home and his former office at a Washington, DC, think tank didn’t have to wait long to see their concerns addressed.

But the allies of former president Donald Trump who are demanding “equal treatment” for Mr Biden and the twice-impeached ex-president — who is himself facing an ongoing investigation into his alleged unlawful retention of national defence information at his Florida beach club and alleged obstruction of that investigation — are likely to be extremely disappointed.

On the surface, the Biden investigation now being supervised by special counsel Robert Hur, a well-regarded former Trump appointee who served as the top federal prosecutor in Maryland, bears some similarities to the long-running Trump probe overseen by ex-war crimes prosecutor Jack Smith.

Both involve chief executives — one current, one former — whose private spaces were found to contain documents with markings denoting them as classified at a level that would have precluded them from being kept anywhere but a secure government facility.

Both investigations, at least in theory, could result in Mr Trump or Mr Biden facing indictment for violating laws governing the handling of national defence information, including a section of the US criminal code commonly known as the Espionage Act.

It’s also possible that anyone caught up in either probe could face charges under a separate section known as Section 1001 if they make the mistake of lying to investigators. A charge for making a false statement to the FBI could potentially be in the offing for at least one of Mr Trump’s lawyers, Christina Bobb, who in June submitted a sworn declaration stating that Mr Trump had returned all the classified material he’d had in his possession. Another Trump aide, Walter Nauta, is also being looked at by investigators after he was allegedly less than forthcoming in an initial interview with the FBI. By contrast, the Biden White House has pledged to cooperate fully with Mr Hur’s work, with several current and former aides to Mr Biden already having sat for interviews with investigators.

But the similarities between the Biden and Trump document probes end there, experts say. Former top law enforcement officials who spoke to The Independent about the new investigation into the Biden documents instead maintained that the probe focusing on Mr Trump involves conduct far more serious than anything his successor could conceivably be accused of.

Moreover, the experts said a different section of US law would make it all but impossible to prosecute Mr Biden — or potentially anyone else — for mishandling the sensitive documents. Yet at the same time, Mr Hur’s appointment could make it far easier for Mr Smith to justify seeking an indictment of Mr Trump for his conduct.

The appointment of Mr Hur capped off a whirlwind of revelations that began on Tuesday, when CBS News reported that Mr Biden’s personal attorneys had discovered roughly a dozen Obama-era documents, some of which bore classification markings, in an office formerly used by the president at a Washington, DC think tank affiliated with the University of Pennsylvania, the Penn Biden Center.

At a brief media availability on Thursday, Mr Garland said he’d been advised by the Illinois-based prosecutor who he’d initially assigned to review the Biden documents matter that a special counsel would be “warranted” after Mr Biden’s lawyers informed him that they’d discovered several more documents at the president’s Wilmington, Delaware home in follow-up searches after the discovery at the Washington, DC, location. Mr Garland said he’d concluded that such an appointment would be “in the public interest” based on the work already done by that prosecutor, a Trump appointee named John Lausch.

Mr Garland’s selection of Mr Hur, a Republican who once clerked for Chief Justice William Rehnquist, is a return to a tradition of attorneys general selecting prosecutors from the opposing political party when investigations of a sitting president or administration are called for, one that lapsed under Mr Trump when then-acting attorney general Rod Rosenstein named ex-FBI director Robert Mueller, a Republican, to take over the investigation into the 2016 Trump campaign’s alleged ties with Russia.

Maryland Senator Benjamin Cardin, a Democrat, said on MSNBC Thursday evening that he had “frequent opportunities” to work with Mr Hur when he was a line prosecutor in the Old Line State on “major issues,” and described their working relationship as “professional”.

“I have a great deal of confidence in his professionalism. And I think he is qualified to do this particular work,” he said.

Yet compared with Mr Smith, his counterpart on the Trump probe, Mr Hur may not have much to do.

It may be far too late to charge anyone for the removal of Obama-era White House documents

Nick Akerman, a former federal prosecutor who worked on the Watergate special counsel probe in the 1970s and as an assistant US attorney in the Southern District of New York, told The Independent in a phone interview that Mr Hur will face two nearly insurmountable hurdles in his way if he were to choose to pursue his investigation with an eye towards an indictment against Mr Biden.

The first, he said, is establishing that the president had any criminal intent in keeping the Obama-era records in unauthorised locations.

Mr Akerman compared the known facts about the Biden documents to what is known about how Mr Trump came to have the more than 100 separate classified documents FBI agents found during the 8 August search of his Palm Beach, Florida home.

He pointed out that the FBI search followed nearly a year and a half of negotiations between the ex-president and the government he once led, including the issuing of a grand jury subpoena compelling Mr Trump to return the classified records.

“If Trump had just given all his stuff back when he was asked, there would never have been an issue there. The issue is when he lied about it and concealed it. And that's what that case is about. It's completely different,” he said.

But Mr Akerman said there’s another, even more immovable roadblock that Mr Hur would face should he attempt to pursue charges against the president — notwithstanding a decades-old Department of Justice policy which states that a sitting chief executive cannot be indicted by the government he leads.

That roadblock is a separate piece of the federal criminal code, known as Section 3282, which states that “no person shall be prosecuted, tried, or punished” for any non-capital crime unless charges are brought within five years of the crime being committed.

The ex-prosecutor said the crime — if there was a crime committed — of removing the classified documents from their proper place would have taken place in January 2017, when Mr Biden’s vice presidential office was packed up at the close of the Obama administration.

He noted that the same part of the Espionage Act that criminalises removing national defence information also makes it a crime to “[fail] to make prompt report” of such a document when discovered, or to “wilfully retain … and [fail] to deliver it to the officer or employee of the United States entitled to receive it,” would implicate Mr Trump — not Mr Biden — because the twice-impeached ex-president refused to return documents when asked to do so.

“The only way you could turn it into a crime is if [Mr Biden] took those documents and gave them to the Russians or gave it to somebody else … and you'd have to show he did that intentionally and wilfully, so it just isn't going to happen here,” he said.

Another former assistant US attorney, Glenn Kirschner, told The Independent he agreed that the statute of limitations laid out in Section 3282 would preclude criminal charges stemming from the removal of the Obama-era documents. He also concurred that Mr Biden could not be charged under Section 793 because his attorneys immediately notified the government upon discovering the documents at issue.

While Mr Kirschner said he disagrees with Mr Garland’s decision to name a special counsel to begin with, he said the existence of a statute of limitations on the crimes under investigation would not preclude Mr Hur from finding out how the documents came to be in Mr Biden’s home and office and submitting a report to that effect.

He also suggested that Mr Garland’s decision could, in theory, give some cover to Mr Garland in the event Mr Smith does seek charges against Mr Trump.

“I can see the arguments in favour of fairness in the event in the event Trump is indicted … there was a special counsel appointed, a federal investigation was done, and there were no charges deemed appropriate for Biden or anybody else who removed documents when he was vice president,” he said, though he added the caveat that such arguments are “for people who are willing to be persuaded by facts”.

He also shot down the suggestion that a lack of eventual charges against Mr Biden could preclude bringing a case against Mr Trump, but he acknowledged that there’s “a lot of superficial … maybe spurious appeal,” to such an argument. He added that arguments positing that both men must be “treated the same” because both situations involve classified documents is “kind of a silly observation” as well.

Former top FBI official says the two special counsel probes will have few similarities

Peter Strzok, a former Deputy Assistant Director of the FBI's Counterintelligence Division who led the investigation into former secretary of state Hillary Clinton’s use of a private email server, offered yet another reason why Mr Hur and Mr Smith are likely on two very different paths.

Mr Strzok told The Independent there “appears to be a strong case” that Mr Trump was “personally involved” in obstructing the Justice Department investigation into the classified records found at his Florida property.

He contrasted that with the new investigation into the Biden documents, which he said is more likely to ensnare “some staffer who displayed a pattern of mishandling classified information or was warned what you can't do with classified information and went ahead and did it anyway”.

He said Mr Hur’s work will most likely be aimed at reconstructing a record of what happened to the Obama-era records and how the classified documents ended up at the Penn Biden Center and Mr Biden’s home.

“To the extent you would see any, and I haven't seen anything … indicating there is, but to the extent you would see any criminal exposure, it's going to come from somebody who was the secretary, the personal aide, the staffer who kind of packed it all up, whose job it was to … go through and catalogue it … because Biden wasn't … sitting there with the box and saying ‘keep this, don't keep this,” Mr Strzok said.

The former FBI special agent compared this possibility to the 2015-2016 investigation he ran into Ms Clinton’s use of private email, and pointed out that had that probe resulted in charges, they would’ve been brought against the staffers who sent her classified information via email, not against her for receiving the emails.

Mr Strzok added that potential charges against Mr Trump would likely focus on the classified documents FBI agents found in the office he uses at his Mar-a-Lago club, rather than the documents found in storage on his property, because those documents appear to have been placed personally by the former president.

He also said Mr Smith is more likely to put the bulk of his efforts in the Trump documents matter into bringing charges for the obstruction Mr Trump is alleged to have committed, and while he said he doesn’t believe Mr Garland’s appointment of Mr Hur was made with an eye towards making a Trump indictment more palatable, the former top FBI official told The Independent he believes the fact that there is a Biden investigation makes it far easier for Mr Smith’s probe to bear fruit against Mr Trump.

Not only will the existence of the investigation into the Biden documents give cover to any push to charge Mr Biden’s predecessor, but according to Mr Strzok, the facts the Biden probe is likely to surface will make it yet more clear that it is Mr Trump — not Mr Biden — who should be in the dock for his mishandling of the documents and obstructing the probe into his actions.

He pointed to the way the Department of Justice weighs seeking charges in cases where classified information is mishandled, in which prosecutors weigh whether a person has brought about any aggravating factors that put their conduct beyond simply being negligent. The fact that Mr Trump’s actions fit that bill will be made all more clear by what Mr Hur finds, he said.

“The fact of the matter is, it's helpful,” he said. “For Smith, this is not a risk, this is a benefit. So I do think this helps him”.