Robert Hur's rationale for not prosecuting Biden shows the danger of prosecuting any presidential candidate
While I was enjoying tropical sunshine, Joe Biden escaped prosecution for unlawfully possessing classified information and unlawfully disclosing some of the content. In a couple of excellent posts, Bill discussed the decision not to prosecute. I don’t disagree with anything Bill said, but want to look at the matter from a slightly different angle.
The decision to let Biden walk came down to the prosecutor’s judgment that a jury would be highly unlikely to convict the president. This judgment, in turn, was based at least in part on concern that a jury would view him sympathetically because of his age and mental condition.
I find this outcome problematic. Before explaining why, it’s important to note that, in focusing on Biden’s current mental condition, the prosecutor did not conclude that the president was incapable of forming the requisite intent to commit the crimes at issue (which he committed years ago when he was less impaired). Instead, the prosecutor concluded that, in his current condition, Biden would come across to the jury as a diminished old man deserving sympathy.
Ordinarily, I could easily understand a prosecutor’s decision not to try Biden in these circumstances. Indeed, I could understand not prosecuting anyone whom, for any reason, a prosecutor did not think he could convict. Such a prosecution seems like a waste of time and resources.
But when the potential defendant is a leading political figure and a big reason for non-prosecution is jury sympathy, the calculus becomes more complicated. Why? Because a jury’s tendency to sympathize (or not) with such a defendant is likely to be driven by political/ideological considerations that should have no place in deciding whom to prosecute.
Sure, a jury in Washington D.C. or Delaware would likely view Biden as a kindly old uncle who meant no harm, and therefore let him off the hook. But would a jury in Wyoming do so? I doubt it.
Then, too, a D.C. or Delaware jury might well view Biden as too sympathetic to convict even if his mental facilities were fully intact. Since the prosecutor found that Biden’s age and current lack of sharpness have nothing to do with whether he actually committed the crimes at issue, why should sympathy stemming from these concerns be treated differently than sympathy stemming from the view that Biden is a great American trying to advance the cause of social justice?
Finally, and most tellingly, let’s imagine that the doddering defendant is Donald Trump, not Joe Biden. I realize that Trump isn’t doddering (although he did mistake Nikki Haley for Nancy Pelosi and his out-of-control tirades suggest some mental decline). But for the sake of this exercise, let’s assume that it was Trump who couldn’t remember the dates when he was president and basic facts about his children.
In this scenario, would a Washington D.C. jury be so sympathetic to Trump as to make criminal conviction highly unlikely? I doubt it. Trump is too hated in these parts to garner sympathy even in his dotage.
This means that under Robert Hur’s approach, one presidential candidate — Trump — probably would be prosecuted for the way he handled classified information while another — Biden — probably would not be, even if they were identically situated in terms of their handling of classified information and their mental condition. Why? Because jurors in D.C. hate Trump and like Biden.
To me, this state of affairs is unacceptable. How is it best avoided?
I believe it’s best avoided by not prosecuting presidential candidates or at least not prosecuting them for anything but the most heinous and long-recognized crimes. I’ve leaned towards this position for years, and believe Robert Hur’s treatment of Biden, compared to Jack Smith’s treatment of Trump, reinforces it.
Say what you want about James Comey — I can’t stand the guy — but I think he got it right when he decided not to prosecute Hillary Clinton. He laid out the case against her to the public (wisely ignoring the practice, fine in a normal situation, that “the Department of Justice does its talking in court”) and let the voting public decide what to make of it.
Robert Hur followed essentially the same course. And like Comey, his stated rationale for non-prosecution was a variation of the we-can’t-get-a-conviction view. In my opinion, it would have been better if both had simply said that to prosecute the case would be to interfere unduly with the democratic process.
I think this would also have been the best course in the Trump cases, with one possible exception that I’ll get to in a moment. Jack Smith, having found he didn’t have the goods for an insurrection charge, should not have gone rummaging through the U.S. Code to find esoteric charges he could bring against the former president for his non-insurrectionist conduct.
Trump’s mishandling and unauthorized disclosure of classified information are serious offenses, but so were Biden’s similar mishandling and unauthorized disclosure. Still, as far as I can tell, the U.S. wasn’t harmed in either case.
Under these circumstances, it seems better to let both men off the hook than to prosecute them in the middle of a presidential campaign. And prosecuting one but not the other seems like the worst course.
The one bit of criminality I find very difficult to let go of is Trump’s blatant efforts to obstruct justice in the documents case. If Smith were prosecuting Trump for obstruction and obstruction alone, I wouldn’t be inclined to criticize him.
But of course, Smith has gone much further than that. And by doing so, he’s tying Trump is knots that likely will harm his ability to run for president.
I recognize that in arguing against prosecuting serious presidential candidates, I’m failing to uphold the important principle that “no man is above the law.” But given political reality, efforts to uphold that principle in this context can easily end up meaning that some candidates (Hillary Clinton and Joe Biden, for example) are above the law and others (Donald Trump) are not — or at least fueling that perception. This seems like the worst of all possible legal worlds.
The U.S. went more than 230 years without a leading presidential candidate being prosecuted. This didn’t happen because an over-lawyered nation with two parties dedicated to practicing lawfare couldn’t find grounds for prosecuting more than one such candidate (think of James Blaine, for example). It happened because during most of this period we were not an over-lawyered nation that indulged in lawfare.
The Republic survived. And I believe the public had more respect for our legal system, not less, because of this forbearance.
We have crossed the Rubicon in so many ways I don't how we will ever get back to the other side. It seems to me that every year the social contract by which American politicians will abide by Constitutional and societal norms gets torn into smaller and smaller pieces. This is not something one party alone is responsible for and with two lawless cretins one of whom is senile and the other who is unhinged, as our two main choices we may soon pass the point of no return. Meanwhile our enemies abroad salivate.
There is both an inherent fairness and historical precedent for this view. It sure beats what's happening now! I just watched a brief interview with the loathsome and dishonest Adam Schiff, who is likely to be elected to the US Senate soon. Unfortunately he represents the qualities far too many voters seem to prefer, therefore, we won't be moving toward Paul's position anytime soon. Sad.