Special Counsels Robert Hur and Jack Smith have been tasked with investigating President Joe Biden and former President Donald Trump, respectively, for their mishandling of classified documents.
Although the Nov. 2 discovery of Biden’s first batch of classified documents had not been publicly reported when the Trump special counsel was announced on Nov. 18, the Department of Justice had been briefed. So Garland knew then if he appointed a special counsel to investigate Trump, he would be pressured into appointing one for Biden when the news eventually broke. Considering he’d already taken the extraordinary step of ordering a raid on Mar-a-Lago to retrieve “sensitive” material, his failure to appoint a Biden special counsel for the same offense would have been difficult to defend.
We’re quickly learning, however, that not all special counsel investigations are created equally. The differences between these two probes could not be more glaring.
By tailoring the scopes of the two special counsels to serve the DOJ’s purposes, Garland accomplished three objectives: he satisfied public calls for equal treatment under the law, he minimized Biden’s potential legal jeopardy, and he provided the DOJ with a ready excuse to withhold document requests from House GOP lawmakers.
Compared to the wide scope of the Trump special counsel, the scope of the Biden investigation is far narrower. Robert Hur is tasked with probing the “possible unauthorized removal and retention” of the classified documents found at the Penn Biden Center and his Delaware residence. And although Hunter Biden had unfettered access to at least one of these locations and is alleged to have engaged in a lucrative influence peddling scheme from which his father, the “big guy,” may have benefited financially, he is not mentioned in the appointment letter, and thus, remains out of the special counsel’s reach.
On the other hand, Jack Smith is authorized to investigate Trump’s “efforts to interfere with the lawful transfer of power” and the “certification of the Electoral College vote,” the classified documents that were held at Mar-a-Lago, his potential obstruction of the government’s efforts to retrieve the documents, and any matters that arise directly from the investigation. Obstruction of justice will be the likely focus of this special counsel.
In addition to the disparity between the scopes of the two special counsels, there are Grand Canyon-sized differences in the DOJ’s treatment of the cases.
Earlier this week, the Wall Street Journal reported that the DOJ decided against having FBI agents monitor Biden’s attorneys as they search for additional documents. Sources who were “familiar with the matter” told the Journal the decision was made to “avoid complicating later stages of the investigation and because Mr. Biden’s attorneys had quickly turned over a first batch and were cooperating.”
Aside from the fact that White House general counsel Richard Sauber is the only Biden attorney who holds a security clearance and the lawyers involved in the search may become potential witnesses in the case, this constitutes an obvious conflict of interest. I suppose it doesn’t really matter because they’re all on the same team anyway.
Still, it’s a stark contrast to the spectacle of the unprecedented, Merrick Garland-approved FBI raid on Mar-a-Lago in August, just three months before the midterm elections. Not only were Trump’s attorneys prohibited from monitoring the search, agents requested they turn off the property’s surveillance cameras.
DOJ leaks to the legacy media were a hallmark of the raid. For example, two days afterward, the Washington Post reported “people familiar with the investigation” said the reason for the FBI’s urgency was because they’d received a tip that documents related to nuclear weapons were being stored at Mar-a-Lago. No one is leaking to the press about the contents of Biden’s classified material.
In one of the more memorable exchanges following the raid, Fox Business News host Elizabeth MacDonald asked former assistant U.S. attorney Andrew McCarthy, “So, why do a raid with a battalion of 30 agents with machine guns over a record violation?”
“Because it’s not over a records violation,” McCarthy replied. Bingo.
Another item that’s been lost in Garland’s zealous pursuit of Trump is that, during his presidency, Trump had the authority to declassify material. As vice president, Biden did not.
Ironically, despite the inconsistencies between the DOJ’s handling of the two special counsels, they just may share a common goal. Clearly, Democrats want Trump to quit the 2024 presidential race. But another theory has been gaining steam in political circles: Democrats want Biden to stay out of the race too.
A previous version of this article appeared in The Washington Examiner.
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Good reporting.