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Dear Reader,

There’s this concept in football called “offsetting penalties.” (If you’re already a fan, forgive me; you can skip ahead.) In the rare instance when both teams commit penalties on the same play, the penalties essentially cancel one another out, and teams must redo the down. It doesn’t matter what happened on the play – whether it resulted in a touchdown for the offense, or a sack for the defense, or something in between. And it doesn’t matter if one team’s infraction was far worse than the other’s. So let’s assume, for example, a defender picks up the quarterback and bodyslams him after the play – the most serious type of penalty, usually worth 15 yards. Meanwhile, an offensive player lines up with one toe just barely poking across the line of scrimmage – a minor, procedural foul worth only five yards. Fair or not, the rules say that the two penalties cancel out, regardless of relative severity, and the teams must replay the down.

When the news broke this week about the discovery of classified documents in the home and private office formerly used by Joe Biden, I instantly thought of offsetting penalties. 

Biden’s conduct here should – repeat, should – have absolutely nothing to do with what happens to Donald Trump in the ongoing investigation of classified documents at Mar-a-Lago. Every case stands on its own merits and, on these merits, Trump’s conduct was different (and worse) in key respects than Biden’s. But I can’t shake the feeling that Biden’s transgression – major or minor as it might turn out to be – could have the effect of wiping Trump’s malfeasance off the board. I’m not saying it’s right, or fair. But it’s in play, practically.

We’re well familiar by now with the factors that differentiate the classified documents found at Biden’s home and private office from Trump’s cache at Mar-a-Lago. Biden had ten classified documents in his office, and some currently-unknown number more in his home; Trump had over 300 (though both sets included documents marked “Sensitive Compartmented Information,” the highest level of “Top Secret” classification). Biden has denied he knew anything about the documents, and no evidence to the contrary has emerged at this point. Trump, meanwhile, has openly acknowledged that he knew about his trove, offering up varied and bizarre explanations why he was entitled to have them (he magically declassified them, they’re his property, he’s president and can do whatever he wants). Biden’s lawyers notified the National Archives immediately upon discovering the documents, whereas Trump’s team went into cover-up mode, prompting an investigation for criminal obstruction.

That’s not to suggest Biden is in the clear. Substantial questions remain. Was he in fact entirely unaware of the documents, as he claims? How did the classified documents make it into his home and private office in the first place? Was there any record to indicate they were missing from proper government custody? How did the documents remain out of government control for over five years? Why were Biden’s lawyers packing up the office? Why didn’t Biden’s team say anything publicly for over two months after the discovery? And when they did make a statement, why did they acknowledge that documents had been found in Biden’s office, but not mention that more documents had been found in Biden’s home (which they had, by that point)? 

Whatever the answers to those questions, the biggest winner here, through none of his own doing, is Trump. It’s yet another windfall, one more in a series of lucky, undeserved breaks that have come his way. Here’s why Trump benefits. Any rational person can understand that the two cases are separate, and that one outcome does not dictate the other. And we can methodically tick through the differences between the Biden and Trump classified document scenarios. There’s a case to be made that, on paper, those distinctions might in fact be significant enough to justify criminal charges against Trump but not Biden. Repeat: on paper.

Of course, to use another football reference (forgive me, it’s playoff season), they don’t play the game on paper. The key decisions here will be made in the three-dimensional world, by flesh-and-blood human beings, blessed and cursed with emotions, incentives, fears, and passions. And the most important human being in both the Biden and Trump cases is the attorney general, Merrick Garland. While Garland has tapped former federal prosecutors Robert Hur and Jack Smith as special counsel investigating Biden and Trump respectively, the attorney general himself will have the final say on both matters. 

I can see Garland going either of two ways here. On the one hand, if you wanted the ultimate bureaucrat to sift mechanically through the evidence and make a decision based on a cold, quasi-mathematical calculation of the relevant factors, Garland is your guy. 

On the other hand, let’s consider what we know about Garland. He remains a reserved public figure who doesn’t speak much and talks almost entirely in bromides when he does. (That’s praise, not criticism; it’s how prosecutors ought to behave publicly.) We also know that Garland is allergic to politics. It is received wisdom by now that Garland refuses to use his power as AG for political purposes. (Again: that’s a good thing.) What’s debatable, however, is whether Garland has taken his aversion to politics too far, to the point where he refuses to take any step that might make political waves, even if that action is right and necessary. It’s one thing to be non-political; it’s another to be paralyzed by politics.  

Let’s assume for the moment that Garland will not conclude Biden has committed a crime. So now: can we envision a scenario where Garland (1) gives Biden – a fellow Democrat, his own boss, the man who nominated him – a pass on a documents case, while also (2) indicting and seeking to imprison Trump – the Republican Party’s leader, who happens to be challenging Biden for the 2024 presidency – also on a documents case? What in Garland’s nearly two-year tenure as AG leads you to believe he would be willing to take such a politically explosive step? (Quick quiz: name the single most politically powerful person Garland has indicted in his two years on the job. Yeah, I can’t either.)

Donald Trump has been rescued from legal jeopardy many times over: by Robert Mueller, when he and his team pulled up lame and gave us mealy-mouthed non-conclusions; by Bill Barr, when he distorted Mueller’s work; by the Watergate-era Justice Department policy against indictment of a sitting president; by his confederates who stayed mum rather than cooperate, and were rewarded with pardons for their trouble; by New York state prosecutors, who proved to be all bark, little bite and ultimately took their fight to civil court. This time, it may turn out that Trump’s unwitting savior is his own most formidable political opponent, Joe Biden. 

Stay Informed,

Elie