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The media attempts to explain that Biden committed a lesser offense than Trump, although both likely committed similar violations. The threshold for Trump regarding document violations is higher due to his declassification powers as president. Additionally, Trump took the documents after his presidency, whereas Biden took them after his vice presidency.
While Jack Smith is investigating Trump, Merrick Garland appointed Robert Hur to investigate Biden's mishandling of documents.
Moving forward, Garland must ensure that both Special Counsels apply the same standards to both parties.
Constitutionally, as the sitting president, Biden cannot be indicted and can only be impeached, preventing Garland from pressing charges against him.
At the same time, it is improper for him to indict Trump, the likely Republican nominee and a former president who, by having held the office of President, commands a high bar for similar violations.
The critical question is whether Biden can be shielded from indictment for the violation, while Trump could potentially face charges for the same offense.
Precedents Matter
Established precedents tell us that indicting Trump would be an overreach of the law. To understand the context, let's examine similar past violations.
In 2003, Sandy Berger, the former National Security Adviser in the Clinton Administration, took classified documents from the National Archives on multiple occasions. Berger concealed the documents in his clothes and walked out. He was fined $50,000 and sentenced to 100 hours of community service.
Hillary Clinton housed an email server, purportedly for “convenience,” at her home in Chappaqua, New York, while she was Secretary of State. She did not use or activate her state.gov email account, which would have been hosted on servers owned and managed by the US government. Her home server housed a few classified documents accessed by foreign governments. Despite this, FBI Director James Comey chose not to bring a criminal case against Clinton, stating that no "reasonable prosecutor" would do so. However, he acknowledged that she and her aides were "extremely careless" in handling classified information.
The violations committed by Sandy Berger and Hillary Clinton were far more severe than what Trump allegedly did. Therefore, Garland must carefully consider these past precedents and avoid overreaching in the case of Trump.
Questioning An Election Is Not A Crime
Jack Smith is investigating efforts by Trump and others to overturn Biden’s 2020 wins in battleground states.
Many Republicans believe that the 2020 election was stolen from Trump. We concede that no one knows the truth. Trump lost by just 50,000 votes. There were numerous irregularities related to mail-in ballots, absentee voting, and ballot harvesting. Further, Zuckerburg’s $400 million funding for election operations benefited Democrats.
According to Hans von Spakovsky, a former Federal Election Commission member, Zuckerberg’s donations to a pair of nonprofits that doled out the cash to nearly 2,500 counties in 49 states “violated fundamental principles of equal treatment of voters since it may have led to unequal opportunities to vote in different areas of a state.”
Merely because individuals like Jake Tapper at CNN and Joe Scarborough at MSNBC repeatedly castigate any questioning of the election in derision as a 'big lie,' it does not make their thinking an irrefutable truth.
Trump's statements indicate his genuine belief that the election was stolen from him. This differs from knowingly claiming victory despite losing.
After being impeached by the House on January 6 and subsequently acquitted by the Senate, the Democrats pursued a one-sided January 6 committee, which many consider a staged spectacle. The Special Counsel's investigation marks the third attempt at the same matter.
Trump is not the first candidate to question an election. Stacy Abrams, a hero for Democrats, has yet to acknowledge her 2018 loss for governor of Georgia. Even Jamie Raskin, a Democratic member of the Jan. 6 committee, had protested against the 2016 election on the House floor.
The Special Counsel must not creatively extrapolate the matter and pin charges on Trump.