More potentially wonderful news for Trump. What a cluster F. To avoid doubt, I'm not defending Trump on the basis that Biden F'd up. Nevertheless, my fear is that the Biden F ups will make it more difficult for the DOJ to charge Trump.
>>>Another batch of
classified government records were found by President Joe Biden’s legal team, following the initial discovery of
classified documents at his former think tank office in Washington this past fall. According to people briefed on the matter, the additional classified documents were found in a second location during searches that took place after lawyers found the initial classified documents. That effort led to the discovery of additional documents of interest to federal officials reviewing the matter, one of the sources said.<<< (emphasis added)
There are clearly significant differences between the Biden and Trump situations, but the Biden F ups create headaches for the DOJ.
As discussed in the article by Tribe at justsecurity.org (link below), there are at least three document-related laws that Trump could be charged with: willful removal under section 2071, theft of a government document under Section 641, and Espionage Act Violations (Section 793). Based on the facts available to the public, there is quite a bit of evidence to support an obstruction of justice count as well.
The Justice Department would be on strongest legal ground to indict former President Trump for MAL crimes in Washington, DC not Florida.
www.justsecurity.org
Section 2071 is the one that is most difficult to distinguish (just my opinion, of course).
To the extent one is relying on the fact that Biden apparently returned the documents as soon as he became aware of them (assuming he somehow didn't know about them previously), the question is: where does Section 2071 state that returning the documents negates removing the documents in the first place?
www.law.cornell.edu
Here's a DOJ statement with regards to Section 2071:
>>>There are several important aspects to this offense. First, it is a specific intent crime.
This means that the defendant must act intentionally with knowledge that he is violating the law. See United States v. Simpson, 460 F.2d 515, 518 (9th Cir. 1972). Moreover, one case has suggested that this specific intent requires that the defendant know that the documents involved are public records.
See United States v. DeGroat, 30 F. 764, 765 (E.D.Mich. 1887).
The acts proscribed by this section are defined broadly. Essentially three types of conduct are prohibited by 18 U.S.C. § 2071(a). These are: (1) concealment,
removal, mutilation, obliteration or destruction of
records; (2) any attempt to commit these proscribed acts; and (3) carrying away any record with the intent to conceal, remove, mutilate or destroy it. It should be noted that all of these acts involve either misappropriation of or damage to public records. This has led one court to conclude that the mere photocopying of these records does not violate 18 U.S.C. § 2071.
See United States v. Rosner, 352 F. Supp. 915, 919-22 (S.D.N.Y. 1972).<<< (emphasis added)
Again, where does it say that returning documents negates taking them?
Failure to return the documents could constitute an additional crime (obstruction), but Section 2071 does not state that returning the documents absolves one of all potential liability. There's no doubt it would be factor that the DOJ would consider in it's decision, but it's not a slam dunk.
There is of course a decent argument that Trump must have known he was violating the law (since it is not possible to read minds, the fact question of his mental state would ultimately go to a jury and they'd infer whether or not the evidence established beyond a reasonable doubt that Trump knew he was violating the law).
Is there evidence that Biden must have known he was violating the law? At this stage it's unclear, but how could he not know the law as a fomer senator and after 8 years as the Vice President of the United States? How could the documents end up in his possession without his knowledge?
Here's the basic "problem" for the DOJ as I see it. If you are Garland, do you indict Trump for all of the document-related crimes
and obstruction but
not indict Biden for anything? (in reality a sitting president cannot be indicted under DOJ guidelines, so the real question would be "do you state that the facts wouldn't justify an indictment of Biden?"). It's entirely possible, but it's a bit, shall we say, awkward. The DOJ would need some lawyerly massaging of the law in order to conclude that Biden is blameless, or close enough to avoid charges (don't get me wrong, there are plenty of ways to do this).
In terms of indicting Trump, Garland does not appear to be especially anxious to do so due to the issues involved (i.e. even though Garland says all decisions will be based on the facts and the law, there's no doubt he is considering the entire situation). My sense is that Garland is looking for a way to avoid a full blown criminal trial of Trump, but Trump has been pushing Garland in that direction (Garland: "Are you feeling lucky punk?") .
It remains to be seen exactly how many government documents were in Biden's possession (assuming he didn't lose possession of any) and the circumstances concerning how it occurred. And of course we don't know what the special prosecutor will report to Garland in the Mar-a-Lago case, or what the U.S. attorney reviewing the Biden documents situation will have to say.
At this stage, the only thing that is certain is that the orange person in Florida will howl incessantly about the Biden documents.
