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If you’re not intently following the drip, drip, drip of the various classified documents scandals involving President Joe Biden, former President Donald Trump and former Vice President Mike Pence, it’s easy to lose the thread.
Suffice it to say the criticism of Biden has grown, even among Democrats. The investigation into Biden’s handling of documents, a foil for the larger investigation into Trump’s behavior, is not going away. And the emergence of the Pence issue makes this a full-on bipartisan trend of sloppiness.
I talked to Elie Honig, a CNN senior legal analyst and former federal prosecutor who is out with a new book, “Untouchable: How Powerful People Get Away With It.”
I wanted his perspective on how to view the recent developments. Our conversation, conducted by phone, is below.
What the FBI considering a Biden search warrant tells us
WOLF: What do you make of this recent CNN reporting that the Justice Department considered a search warrant before Biden’s attorneys let the FBI into the president’s Delaware home?
HONIG: I think it was interesting to see that DOJ was considering seeking a search warrant because in a situation like this, if there are documents out there in the world, DOJ really has three options:
- The easiest way, if you fully trust and are satisfied with doing it this way, is to let the Biden team do it themselves. Say, “Hey, we trust you. You do your search, you give us what you get.” Clearly, that was not sufficient or satisfactory to DOJ.
- They ended up doing the second option, which is what we call a consent search – meaning, we’re going to do this search, we would like your permission to do the search.
- Biden’s team then had two options: either agree to the search, which they did, or take the risk that DOJ might then go to the third level, which is going to court and seeking a search warrant. That is what ended up happening with Mar-a-Lago.
The other interesting thing to me is prosecutors and the DOJ know that they can only get a search warrant if they can demonstrate that they have probable cause that a crime was committed and that they’ll find evidence of that crime in the place they’re searching.
This tells us the DOJ at least was considering the possibility that they would have had to go to a judge and establish probable cause.
WOLF: And that they were willing to do that. They were willing to go to the next step.
HONIG: It tells us that they felt that there had to be an FBI search, either with or without the consent of Biden’s team.
I think it also undermines some of the argument that there’s been inequitable use of the FBI and law enforcement tactics here.
People sometimes say, “Well, why was there a search warrant at Mar-a-Lago, but the FBI let Biden consent to a search?” If Biden had not agreed, they would have considered going in and doing a search warrant just like Mar-a-Lago.
Other former presidents could face a tough choice
WOLF: What about the other recent story, that the National Archives is asking several former presidents and vice presidents to look through their documents? If the current president had classified documents he shouldn’t have, and the former president had classified documents he shouldn’t have and the former vice president had classified documents, we can maybe assume that these other former presidents all have classified documents.
(Representatives for four former presidents have all so far told CNN they do not have classified documents in their possession).
HONIG: The question has to be raised now – how common is this? We are three for three: Trump, Biden and Pence all had classified material.
Given these three revelations, it seems quite reasonable to ask, well, does every former president and vice president have classified documents? There is some responsibility on the National Archives, and potentially DOJ, to double back and make sure.
The answers that we’ve heard so far, generally speaking, from the formers is that, well, we already turned over everything. The problem, as we’re seeing, is that it turns out documents slip through the cracks and years later are found. It will be interesting to see whether and how pointed Archives or DOJ is in demanding, we need you to have lawyers go back and search through all of your archives now and reconfirm.
If that happens, it puts the formers in an interesting position. They can either say, “OK, we will do that and then risk more classified documents being found.” Or they can say, “No, we think we already did this,” which is not going to look exceptionally transparent and which is not going to play very well. They’ve got an interesting sort of dilemma coming up here.
Is a false equivalence being created between Biden and Trump?
WOLF: There is a need, obviously, for equal treatment between Republicans and Democrats. But what shook all of this loose was Trump’s obstruction in refusing to turn documents over. Do you think that the way (Attorney General Merrick) Garland is handling this is creating a false equivalence between the actions of Trump on one hand and Pence and Biden, who cooperated, on the other?
HONIG: No, I think each of these cases stands on its own facts. There are important similarities and there are crucial differences between and among all three of these cases.
Merrick Garland’s job, on paper by the textbook, is to go case by case, evaluate each one independently, separate and apart from the others, and decide does this cross the line of being a crime or not?
I do think that as a practical and political matter, the fact that we now have three of these makes it more politically fraught to charge just one of them.
Based on what we know at the moment, it seems like Trump’s conduct was the most serious. We’re talking about the highest number of documents by a good amount and the least cooperative – arguably obstructive – response.
But that’s not necessarily the be all, end all of what the prosecutor is going to be asking. The real key points prosecutors are going to be asking is:
- Did any of these individuals know these documents were in their possession?
- Did they have any sort of criminal intent relating to them?
The numbers matter, but ultimately, you can have criminal intent as to one document, and you can have 10,000 documents that you have no idea about if they’re in some warehouse you never go to, hypothetically, or whatever. It’s all going to turn on knowledge and intent.
Will Garland stand by the custom that presidents can’t be prosecuted?
WOLF: The standing custom in the Justice Department going back for many presidents is that sitting presidents cannot be charged with a crime. Is it your sense that the way that we’re seeing this play out with the special counsel and with the FBI searching Biden’s home – is that custom being viewed differently under Garland’s watch?
HONIG: No. First of all, I’m glad you called it a custom, because that is the right way to frame it. People sometimes say DOJ cannot indict a sitting president. The actual correct way to phrase it is DOJ has long decided that it will not try.
That said, you certainly can investigate a sitting president criminally. We saw that with Donald Trump. He was being investigated by Robert Mueller while he was in office. There’s no policy issue with investigating a current president.
The question is what do you do if you conclude that there’s been a crime? Mueller, I think, fumbled on that question by issuing his mealymouthed report where he did not state clearly whether he believed a crime had been committed. He left us with bureaucratic mumbo jumbo of if I could clear him, I would, but I can’t, so I won’t. Which left us all confused and nowhere.
If the special counsel on the Biden case, if Robert Hur concludes that a crime was committed – and with the evidence thus far, we just don’t know, but I’ve not seen evidence that clearly indicates a crime – but if he makes that conclusion, how will he express it?
I think the job of a special counsel if you look at the regulations, they say the special counsel shall state the reasons for his prosecution or non-prosecution decisions.
I actually think Mueller failed on that. And I think it’s incumbent on any special counsel to say, “He’s a sitting president; under long-standing DOJ policy, we can’t or we won’t indict him. However, my findings are that he did or did not commit a crime.” And then that can be dealt with when that president leaves office.
Garland is in a historically and legally tight spot
WOLF: We have a special counsel for Trump, and we have a special counsel for Biden. But at the end of the day, it’s Garland, or whoever is attorney general at the time, who will make a decision as to whether any crimes that are uncovered should be prosecuted. This is a snowballing responsibility that no previous attorney general has ever had with a current and former president.
HONIG: Merrick Garland is in a unique position, historically and legally. While the law says he has to give “great weight” to the recommendations of a special counsel, it ultimately will be Merrick Garland’s call whether or not to prosecute Donald Trump or Joe Biden.
Merrick Garland is the ultimate bureaucrat. I don’t mean that as an insult. I mean, he is very much a rule follower and by the book. He ought to be assessing each of these cases completely separate and apart from each other. Completely independently. It might well be that one of them is a crime and one of them is not.
That said, I don’t buy this notion that Merrick Garland is this sort of magical figure who floats above politics. You don’t become a federal appellate judge, a nominee for the Supreme Court and the attorney general if you’re not at least aware of reality and politics.
As a practical matter, it now becomes harder for Merrick Garland to say, “We’re going to criminally charge and seek to imprison Donald Trump, who by the way, is running for president against my current boss, but I’m also going to give my current boss a pass, and I’m gonna give Mike Pence, who may be challenging Donald Trump and has broken from Donald Trump, a pass as well.”
The facts may well ultimately support that, but politically, that is a really difficult outcome for Merrick Garland to stand behind and support.
Is this a problem of too many and confusing laws?
WOLF: I was reading a New York Times op-ed the other day after news that Alec Baldwin would be charged with involuntary manslaughter, that essentially you should never talk with the police. There was a video linked in there in which a defense attorney talks about how there’s a federal law for everything. You can be charged for your possession of a too-small lobster.
HONIG: Oh, I know that. Yep.
WOLF: Is this an example of that? Are we finding that there’s too much classified information and too many laws?
HONIG: First of all, I do not agree that you should never cooperate with the police. I think I think any person who’s under suspicion ought to be careful what they say to the police, but sometimes the best move is to cooperate.
Do we have too many laws? Our classified documents system itself is a mess. Dozens of individuals and entities and agencies have the ability to classify and declassify. We do not have GPS trackers on each of our classified documents.
The law is similarly a bit of a mess. There is not one statute that governs classified documents or mishandling of classified documents. We have a latticework of around half a dozen different statutes that can apply to mishandling of government documents, sensitive information or classified documents.
One policy result of all of this is we need to reassess how we store and track our classified documents. But as a lawyer and a former prosecutor, I think we need a comprehensive, coherent statute that governs what is a criminal mishandling of those documents.