Merrick Garland
Merrick Garland announces special counsel to oversee Biden documents investigation
03:36 - Source: CNN

Editor’s Note: Norman Eisen served as counsel to House Democrats in the first Trump impeachment and as White House ethics czar and ambassador to the Czech Republic in the Obama administration. The views expressed in this commentary are his own. View more opinion on CNN.

CNN  — 

We will all need to be patient now that former Maryland US attorney Robert Hur has been appointed by US Attorney General Merrick Garland as the special counsel in charge of the investigation into the classified documents found at President Joe Biden’s home and private office from his time as vice president.

But giving Hur the time to dig into the legitimate questions he must ask does not mean we should compare Biden’s legal exposure to that of Donald Trump.

Based on what we know now, Biden is unlikely ever to face charges, whereas Trump is at high risk because of his obstructive conduct and other factors absent from the Biden case. The cases have special counsels and classified documents in common — but little else.

Norman Eisen

Hur, who was nominated by then-President Trump for the US attorney role in Maryland in 2018, will now attempt to determine how the batches of classified documents got to Biden’s home in Wilmington, Delaware and to his private office in Washington, DC; who was involved; and who may have seen them.

He will seek to make sure that there are no more anywhere else on Biden’s personal property (a bone of contention in the Trump investigation) and liaise as necessary with national security officials to assess the risk to national security. And he undoubtedly will look at the logistics of the search; for example, if the first batch of documents was discovered in November 2022, why the review that unearthed the new documents was not completed until this Wednesday.

Those are all the same basic questions that apply to the Trump situation. But that doesn’t mean that the answers are likely to be the same — at all. I worked on document handling issues in government. As ambassador, that included my overseeing hundreds of people constantly handling or being in proximity to classified documents. Accidents are common, and so far everything indicates that is what we likely have here.

All that presents the biggest single difference from the Trump case. With Biden there was no pattern of obstruction that we know of at the moment — there is no evidence of that at all.

On the contrary, Biden’s team appears to have raced to turn in the documents when they found them, and took the initiative to conduct a search of other locations where additional documents may be stored, and proactively turn them over to investigators.

Compare that to the former president. He repeatedly resisted government attempts to reclaim his trove of documents over many months. “It’s not theirs; it’s mine,” he proclaimed, according to several of his advisers. His lawyers eventually provided a false written statement that all classified documents had been returned together.

Finally, the Justice Department had to obtain a search warrant — and recovered over 100 more. Far from cooperating, he has continued to fight, impugn and lie about the investigation.

That pattern is evidence of willful misconduct by Trump, and as I have argued in a model prosecution memo, the crimes Trump is being investigated all require an element of intentionality. That includes obstruction of justice (18 U.S.C. § 1503), concealing government records (18 U.S.C. § 2071(a)), and violation of the Espionage Act (18 U.S.C. § 793e). The prosecution precedents for removal of classified documents (as also detailed in the memo) similarly turn on purposeful wrongdoing.

By contrast, Biden denied any knowledge of (at least the first set of) documents, and as yet we have no reason to doubt that or think this was purposeful. Indeed, but for the Trump investigation, we may wonder if the discovery of the Biden documents would have garnered quite this attention or if a special counsel would have been appointed.

Nevertheless, when classified documents are located in multiple non-governmental locations, that deserves serious attention. So, on the whole, it is a good thing that Hur has been appointed — to put any questions to rest and to confirm that the Biden case is as different as it appears.

There are other differences as well that suggest — although it is still early — the striking contrast between these matters. Certainly the sheer volume of classified documents is much less, with over 300 total on Trump’s side versus what appears to be a small fraction of that on Biden’s.

Also, unlike the Trump case, there’s been no search warrant, and therefore no finding of probable cause that crimes were committed. Nor is there any indication, yet, at least, that the Biden documents pose the same level of risk as the Trump ones, with no reporting, for instance, that the documents contain nuclear secrets.

The bottom line is that so far this appears to be a very different case, and the discovery of the second small tranche of documents and the appointment of the special counsel doesn’t change that. If these preliminary indications bear out, it appears unlikely Biden will face charges at the end of Hur’s investigation (whenever that may be).

Just as Hur must decide the Biden case on its facts, special counsel Jack Smith, who is looking at the Trump documents case, should not be influenced in any way in making his determinations about charging Trump based upon this separate and very different case involving Biden.

That, of course, demands great prosecutorial discipline. The mere fact that Biden too had classified documents creates superficial similarity and political pressure. But prosecutors are accustomed to screening out politics and other extraneous matters and deciding the case before them.

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    Under the ethics rules governing prosecutors and indeed all lawyers, as well as the DOJ principles of federal prosecution, they must do so here.

    It says a lot about Garland that he appointed Hur, a Trump appointee with sterling conservative credentials, including clerking for former Chief Justice William Rehnquist. Garland doesn’t want there to be any question about the fairness and the toughness of the special counsel investigation. He is quite right.

    So we need to be patient. We need to let Hur do a searching review and get to a place where we’re confident with the outcome, particularly if it is a different outcome than the one Trump faces. It very likely will be.