Republicans may have moved on to huffing on gas stoves fumes all day, but Merrick Garland has a long memory — well, at least long enough to remember this week — and decided to act on the previous GOP outrage demanding a special counsel to investigate Joe Biden’s mishandled classified documents. After a furious news cycle complaining to right-wing outlets about the injustice that Donald Trump faces a special prosecutor and Joe Biden doesn’t, the Department of Justice went ahead and gave Republicans got exactly what they asked for.
The Trump and Biden cases are the same… except for the volume of materials, the fact that Trump attorneys appear to have falsely represented to law enforcement that there were no more materials, and then ultimately refused to turn documents over after months of negotiations forcing the government to get a warrant. By contrast, Biden’s team appears to have found materials and just went ahead and informed law enforcement about it. But putting aside all of that the part that is the same is that political appointees in the DOJ are best handing off the matter to special counsel to avoid the appearance of impropriety.
Which has now happened.
Trump and friends botched this strategy from the beginning. Demanding a special counsel for the Biden issue was never going to convince the DOJ to just forget that they had to execute a warrant to get material they’d politely asked Trump to return for months.
Instead, they just made the Trump probe look less partisan. If Jack Smith finds a basis for criminal charges, he now has even more legitimacy to bring a case against Trump. Conservative voters will forever quibble over the false equivalency, but all the dwindling number of moderates and independents see if a Department of Justice willing to put a former Republican U.S. Attorney on Biden’s case.
Gibson Dunn partner Robert Hur, formerly the Trump-appointed U.S. Attorney for the District of Maryland, will now look into Biden’s documents. He’ll probably conclude that Biden improperly handled the documents and recommend an administrative penalty of some kind, which is how these cases usually go when the target didn’t mislead investigators.
Take it from an expert in this area:
Once again, in the immortal words of DJ Khaled, congratulations to the Republicans… you played yourselves.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.