The "return to normalcy" for safeguarding national security in Joe Biden's garage, and other thoughts on the non-indictment.

Did Robert Hur act within acceptable bounds of prosecutorial discretion in declining to charge the President?

The Wall Street Journal led off its editorial about Joe Biden’s non-indictment for misappropriation of classified information with a picture that’s worth the proverbial thousand words.

Remember when we were told that Biden’s election would bring us a needed “return to normalcy” from the reckless Donald Trump, and in particular from Trump’s (allegedly) criminal carelessness with matters of national security?

OK, well, now you can see for yourself.

In my last post, I noted that the decision to give Biden a walk for conduct similar to that for which Trump has been indicted obviously raises some troubling issues. Inscribed above the Supreme Court, I recalled, are the words, “Equal Justice Under Law.” The disparate treatment accorded our two presidential candidates by a Justice Department only one of them controls is certain to breed the kind of cynicism that, at considerable cost to our civic faith, feeds a corrosive distrust of our institutions it will be hard to reverse.

Most of my post concerned the disastrous political fallout for Biden from Hur’s report, even for all the legal trouble it spares him. I said that later on, I’d take a look at a more strictly legal evaluation of whether Hur’s decision not to indict meets accepted standards for the exercise of prosecutorial discretion, or whether instead it’s yet more evidence of a two-tiered justice system, one for the politically favored and one for everyone else, especially if their name rhymes with “bump.”

That’s what I’ll address now. In an outcome I suspect will be broadly unpopular with many Ringside readers, my conclusion is that, although by no great margin, the decision not to indict is within legitimate bounds of prosecutorial discretion.

Let me start as the WSJ piece started:

In a famous case from the 1990s, the mobster Vincent Gigante offered what became known as “the bathrobe defense.” He attended his arraignment in pajamas and a bathrobe and claimed to be mentally impaired. Regarding President Biden’s misuse of classified documents, the country is now asked to believe the forgetful elderly man defense.

That’s likely to be the main public takeaway from special counsel Robert Hur’s 345-page report of his investigation into the secret documents Mr. Biden kept in various places. Mr. Hur reports that he “uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.” But he concludes that “no criminal charges are warranted,” in large part because he doesn’t believe a jury would convict “a sympathetic, well-meaning, elderly man with a poor memory.”

There is one important thing to note at the outset. Prosecutorial discretion is and must be broad. There’s lots and lots of crime; only finite resources available to deal with it; and a universe of potential defendants, some of whom deserve several thousand years in the slammer (see, e.g., Hamas) and others — a distinct minority to be sure — for whom, for one legitimate if unusual reason or another, a solution that does not involve prosecution is called for. You can’t tell which is which in advance, and it’s as wrong as it can be for a prosecutor to base his decision on assumptions, popularity, trendiness or — least of all — political preference. The mixture of law and politics will poison both. That mixture, far more than Trump’s narcissism or Biden’s sleepy incompetence, is the real road to dictatorship. Nor in my view is the fact that our opponents often seem to be seduced by the temptations of mixing law and politics a reason to follow them down the rathole. In fact, it’s the opposite: If we follow them there, what will happen is not that we’ll teach them a deserved lesson in the error of their ways. What will happen is that we’ll arrive in the rathole quicker, and it will be just that much harder, and take that much longer, to crawl out.

Again, let’s recur to the WSJ’s summary.

The report says Mr. Biden kept documents with classified markings about Afghanistan, an issue about which he had taken a particular interest during the Obama Presidency. He also kept notebooks “implicating sensitive intelligence sources and methods” in his garage, offices and basement den.

Mr. Biden used these documents and notes to assist in writing his 2007 and 2017 memoirs, and he shared those secrets with a ghostwriter. Mr. Hur also discovered a recorded 2017 conversation in which Mr. Biden said to his ghostwriter that he “just found all the classified stuff downstairs.” Mr. Hur also makes clear that with his long experience in public life, Mr. Biden was well aware of the rules required to protect national secrets.

Remarkably even for it, the New York Times looked at the same report and said that it amounted to “long-awaited legal exoneration.” That’s a point-blank lie. To conclude that there might be significant difficulties in proving the case beyond a reasonable doubt to a jury is scarcely to say that the prospective defendant didn’t do it. And, clearly, Hur said no such thing.

So what’s the difference in the evidence that warrants a different outcome — no prosecution for Biden but several felonies for Trump?

The Washington Post is, you will not be surprised to hear, at the ready:

“Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. According to the [Jack Smith] indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it,” Hur wrote.

Biden, on the other hand, “turned in classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations including his homes, sat for a voluntary interview, and in other ways cooperated with the investigation,” the report noted.

So far as I’ve been able to discover, all this is true. That, of course, might not decisively answer the question whether one case deserves, potentially, years and years of imprisonment while the other deserves only the judgment of the voters. (I use the word “only” advisedly here, since the downsides for Biden, although no longer potentially incarceration, are huge).

But there is more here. The other important factor in Hur’s decision was the prospect the Biden would succeed with his version of Gigante’s bathrobe defense: “It would be difficult to convince a jury that they should convict him—by then a former president well into his eighties—of a serious felony that requires a mental state of willfulness." And although Hur doesn’t say so in so many words, Joe’s way of presenting himself to the jury would have more verisimilitude that Gigante’s, because Gigante was very likely faking his dilapidation, whereas with Joe it’s all too real.

In other words, there were in my view legitimate reasons for Hur to decline prosecution. From what I know of the evidence — which certainly is not as much as he does — I would have made a different decision. I think it essential, first, that citizens of whatever rank be brought to account for intentionally undertaken serious wrongdoing and, second, that the public perceive this to be the case, lest the perception of a two-tiered justice system take even firmer hold than it has already. Yet it remains the flummoxing reality that reasonable minds can differ in making discretionary calls. That Mr. Hur made a call different from the one I would make, or perhaps most veteran prosecutors would make, does not, all the factors fairly considered, make it illegitimate. Brimming with heartburn, yes; illegitimate, no.