Documenting Failure

The various reactions to the news that government documents, including some marked as classified, have been found in Biden’s office at Penn and his home in Wilmington have only served to highlight some of the fundamental dysfunctions in our politics today. The mainstream media has once again proven its obsession to both-sides virtually every story, with its expectation and uncritical acceptance of Republican obstruction and bad faith, and with the double standard to which it holds Democrats. The legal system as a whole and Merrick Garland in particular have once again proven they are both incapable of holding powerful figures to account and also apply their own double standard for Democrats. And, finally, it is also apparent that we have a massive overclassification problem which even the government itself is unable to properly control.

Truly, about the only thing similar between the Biden and Trump document “scandals” is that they both involve government documents. It appears Biden was not holding any other government documents beyond the approximately 20 that have been identified as classified. Trump was retaining over 10,000 government documents, more than 300 of which were classified. The National Archives was not seeking the documents from Biden and the only reason we even know about the Biden documents is that he self-reported. The National Archives was seeking documents contained in boxes that Trump had personally overseen packing and he just openly refused to return them for over six months. He then returned a partial set of documents that included classified material and tried to claim executive privilege as well as a “mental declassification” over those documents. His lawyers lied to the DOJ, saying they had performed a thorough search for any remaining documents and only found 38 other classified documents. It appears some of those documents may have been moved from the already unsecured storage area at Mar-a-Lago despite Trump’s lawyers certifying that would not happen. The subsequent raid uncovered more than 100 classified documents, including some found in Trump’s personal office and others found in a public storage shed in West Palm Beach. Additionally, Trump has had his security clearance revoked, meaning he has no right to even view the classified documents that he had. On the other hand, Biden maintained his security clearance from the time his term as Vice President ended in 2016 until he became President in 2021 and so presumably was at least allowed to view the documents in question even though there is no evidence he has.

The laws concerning white-collar crime are seemingly designed as a rich (read white) man’s protection racket since the entire case usually hinges on “intent”, which is not the case in virtually every other type of crime. But it is what it is. Trump clearly not only tried to steal government documents but also tried to hide the fact that he was still retaining classified documents even after receiving a subpoena to return them. He has also obstructed justice with his claim that all the material had been returned. There is no evidence that Biden either knew he had the documents, or that he ever handled them after 2016, or that he tried to conceal the fact that he did. The National Archives were notified within hours of each discovery.

Under existing law’s theory of intent, Trump has pretty clearly committed multiple crimes. Biden has been careless with these documents but has also pretty clearly committed no crime. More importantly, Trump has a history of sharing our nation’s important intelligence with our enemies as well as his personal and financial “friends”. Our top spy in Russia had to be removed because of fear Trump would expose him to the Russians. Trump apparently outed an Israeli spy inside of ISIS to the Russians. He posted a classified photo of an explosion at an Iranian space facility on Twitter, exposing the supposedly top-secret capabilities of our military spy satellites. The Saudi autocrat MBS is rumored to have received a list of his internal enemies from classified material provided to him by Jared Kushner, resulting in the imprisonment and death of some of those opponents. MBS is paying millions to Trump right now, and China paid him millions even while he was President.

To put it simply: Trump has committed a crime, Biden has not; Trump is a security risk; Biden is not. Those might seem like critical differences between the two situations, but the media’s obsession with providing a both-sides narrative to every story is pathological. Certainly, the latter of the two differences nary gets a mention in the media because to openly state that Trump is a security risk is far too “partisan”. CNN, which is apparently looking to become a slightly more highbrow version of Fox under its new conservative owner John Malone has described the Biden story as a “perilous moment” for the President and the “ Biden WH under siege on classified documents”. The editorial page of the Washington Post has stated that the discovery of Biden’s non-crime should now prevent any effort at holding Trump accountable for his actual crimes, using the bizarre argument that an indictment would strengthen a weakened Trump, allow him to again “dominate every news outlet”, and make him a greater threat in 2024. (It really is a shocking argument akin to not prosecuting the mob boss for fear of setting off a gang war.) CNN (again) has stated that the Biden documents case is “spiraling into a major political crisis that threatens to undermine the case for Donald Trump to be charged for his own hoarding of secret material”.

It is a remarkable that the same media voices that were demanding that Biden and Garland restore the independence and credibility of the DOJ by eradicating the politicization of the Barr era are now arguing that Garland should ignore Trump’s crimes because it would be more politically expedient. In addition, the false equivalence between the two cases requires the media to make a mountain out of Biden’s molehill. We are seeing a reprise of Hillary’s EMAILS!! where a minor Democratic violation gets blown far out of proportion in order to equate it with the vast evidence of Republican, in this case Trump’s, crimes. This double standard for Democrats has been true for decades. Obama ran an incredibly clean administration, and this is Biden’s first hint of scandal in his two years as President. Nothing they did or ever will do will compare to the corruption and criminality of the entire Trump administration. In the media, the expectation is that Republicans will be corrupt and obstruct; Democrats, on the other hand, must always be clean and conciliatory.

We can see a similar double standard at play with Garland’s appointment of special counsel Robert Hur. The choice of Hur seems almost unfathomable if Garland’s intent is to remove any hint of politicization of the DOJ. While Hur may have great credentials, the fact is that he chose to work inside the most politicized and corrupt DOJ since Watergate, Barr’s Justice Department, alongside the disgraced Rod Rosenstein and the perpetually impotent FBI Director Christopher Wray would strongly argue against his selection. Why Garland would pick someone from Barr’s DOJ to investigate Biden when there are plenty of Bush era lawyers around who are also eminently (perhaps even more) qualified but don’t carry the same political stench as Hur is anyone’s guess. As Ari Melber notes, the obvious answer is that Garland made a political decision to appoint someone representing the worst of the DOJ in a pathetic and failed attempt to insulate the DOJ from political criticism from the Trumpian GOP. The fact that Garland does not realize that the strategy was bound to fail is even more confounding. Perhaps the only silver lining to Garland’s decision is that appointing a special counsel will insulate the investigation from meddling by House Republicans, but even that can be viewed as another political decision by Garland.

In addition, Hur’s work in the partisan and politicized Trump DOJ contrasts sharply with Special Counsel investigating Trump, Jack Smith, who has a history of prosecuting both Democrats and Republicans alike. But history has shown that Democrats invariably end up being investigated by Republican-aligned lawyers ( see Ken Starr), often because of Democrats’ constantly failing attempts to appease the right. Of course, perhaps even worse than the decision to appoint Hur was Garland’s decision to appoint a special prosecutor at all, considering there is so far no evidence that Biden has committed any crime. And doing so after just a couple of months since the initial self-report compared to the year and a half the National Archives and the DOJ tried to negotiate with Trump once again reeks of Garland trying to protect himself and the DOJ politically from attacks from the right and a double standard applied to Democrats.

All of this speaks to the utter failure that is Merrick Garland. He seems incapable of actually prosecuting any political figure. Virtually every national security expert agrees that if any other citizen had done what has Trump has done with those classified documents, they would be charged and probably in jail today. We have seen no evidence that he ever pursued any investigation into the conspiracy to initiate a violent coup on 1/6 other than having the DOJ pursue all the low-level offenders who actually breached the Capitol. Even in those cases, a federal judge slammed the DOJ for being too lenient. He basically outsourced investigating the coup originally to the 1/6 Committee, a local Georgia prosecutor, and now to Special Prosecutor Smith.

Garland passed on prosecuting Mark Meadows and Dan Scavino for their contempt of Congress. Even when Garland was able to convict Steve Bannon of contempt of Congress, he remained out of jail on appeal and helped foment another coup in Brazil. He let the obstruction of justice cases that Mueller detailed against Trump lapse with the statute of limitations. He never made any attempts to investigate the claims of tax, insurance, and bank fraud made by Michael Cohen, and now, even after the Trump Organization has been convicted of 17 counts of tax fraud, he is apparently leaving any criminal case to the local NYC prosecutor. Garland might as well be a cardboard cutout with a caption bubble that says, “ in order to make sure there is no appearance of being political, I will do nothing but outsource my job to others”. To paraphrase an Elie Mystal rant, if Garland can’t even handle a simple investigation as to whether former government officials mishandled classified documents and why, then what use is he?

Finally, these two cases, along with Hillary’s EMAILS!, highlight the problem the government has with overclassification. In 2013, nearly 5 million people had security clearances and that number is probably far larger now that we are a decade on. Around the same time, another study showed that there were nearly 80 million decisions to classify information and trillions of pages of classified material created in just one year alone. Still another internal study estimated that 80% of classified information could be found easily using open sources and another 16% was similarly available if you knew where to look. That left only about 4% of classified documents actually requiring classification. Overclassification makes government more inefficient as it is harder to share useful classified information across agencies and departments and information therefore tends to get siloed ( see 9/11).

Of course, overclassification is still no excuse for mishandling government documents and classified material. But, just like the major differences between the Biden and Trump cases and Garland’s ineffectiveness and double standard regarding Biden, the importance of that issue will get lost in the both-sidesing and false equivalence of the media and its stenography of the bad faith attacks of Republicans.

Originally published at on January 14, 2023.



Thoughtful discussions on politics and economics with sidelights in photography and astronomy.;;

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