Joe Biden’s presidency is already on thin ice, as a border crisis, inflation, foreign conflicts, and the political prosecutions of his chief election rival Donald Trump have led to his lowest approval rating of this three-year tenure.
But on the backburner has simmered a brewing scandal involving his illegal procurement and storage of classified documents as vice president.
Special Counsel Jack Smith’s investigation of former president Donald Trump leading to criminal charges, while his counterpart Special Counsel Robert Hur sitting silent on Biden’s arguably far more egregious case, has been an unseemly ‘tale of two presidencies’ that exposes that the justice system in America now operates according to double standards.
A new report in Axios, however, suggests that President Biden’s classified documents scandal could be more than a trifling legal headache for the Democratic politician, it could also lead to the release of embarrassing photos that could complicate his already troubled re-election run.
President Biden’s team is concerned that special counsel Robert Hur’s investigation into Biden’s handling of classified documents will hurt his re-election campaign.
Biden aides don’t expect criminal charges in the case, but they believe Hur’s report will include embarrassing details — possibly with photos — on how Biden stored documents.
The Axios report awkwardly interjects that “Biden aides believe that Donald Trump, Biden’s likely foe in November, will try to use Hur’s report to create equivalency with the felony charges Trump faces related to his keeping classified documents after his presidency.”
Yet Axios fails to mention that Donald Trump has every reason to believe that he is on stronger legal ground with the Presidential Records Act than former vice president Joe Biden is with his illegal procurement and storage of classified documents, including at his Delaware home and at the Penn Biden Center, which are not equipped to secure such records, unlike the former president’s home at Mar-a-Lago.
The report notes that “Hur’s probe is done and that his final report could come any time — even as soon as this week — but the final timing is unclear.”
Donald Trump faces 40 criminal counts in his own case, although it is unclear that he actually committed a crime. That is because a little-known Obama directive provides even more legal cover for Trump than the Presidential Records Act.
America First Legal, a nonprofit led by former Trump adviser Stephen Miller, filed a six-page FOIA request seeking to learn more about a “secretive” information technology committee established by former President Barack Obama following a fall 2014 foreign cyberattack on an unclassified network serving the Executive Office of the President.
Obama’s PITC directive from March 2015 established “exclusive control” over information resources supplied to the president, vice president, and EOP. Furthermore, it stated unequivocally that all data supplied to or derived from EOP systems are within the president’s supervision.
“Because of President Obama’s executive action, President Trump could reasonably have concluded that all information provided to him in office was within his exclusive control,” according to AFL’s letter to the FOIA Requester Service Center, which referenced the classified documents case led by special counsel Jack Smith.
After prosecutors brought a 37-count indictment against Trump in June, the former president pleaded ‘not guilty’ to his alleged mishandling of classified materials. A superseding indictment with additional charges related to documents and two other co-defendants was returned by a grand jury in late July.
The former president “was not authorized to possess or retain those classified documents” that federal agents discovered at his Florida property after he left office in January 2021, according to Smith’s charges against Trump.
“But Obama’s PITC memo may have created a reasonable belief in President Trump that he, infact, had such authority,” according to an AFL press release. “Additionally, if the records Trump allegedly destroyed are still preserved within the EOP or the U.S. Department of Defense as part of PITC-created information systems, then other claims in the indictment may be baseless.”
“These explosive findings are consistent with America First Legal’s whitepaper contending that the President of the United States has absolute authority over presidential papers,” the legal group contended. “Neither Congress nor the federal courts may lawfully abrogate or limit this authority.”
As argued by the AFL’s Dr. Dan Epstein, this could imply the Department of Justice filed charges that do not comport with the law.
“Unlocking this secret of the Obama presidency is not only important for public transparency, it has clear implications for whether the government may have failed to disclose necessary information to the defendant as part of its prosecution of former President Trump – and this information may significantly affect the evidentiary support relied upon in indicting and continuing to prosecute a former President. The American people deserve to know the truth behind this secretive memo and how it has been used,” said Dr. Dan Epstein.
Beyond the legal machinations of parsing the PRA and executive privilege, there are the political ramifications of the two presidential cases. If the American people see former President Donald Trump excessively charged and convicted over a classified documents case over standards that are ignored for other presidents, they will be fully justified in believing that the prosecution was political.