Washington Wednesday: Biden’s own document blunder

MARY REICHARD, HOST: It’s the 18th of January, 2023. Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Washington Wednesday.

The White House is in full damage control mode over President Biden’s handling of classified documents.

In an interview with 60 Minutes last year, Biden was asked what he thought when he learned that former President Trump had classified documents at his home. This is what he had to say:

BIDEN: How that could possibly happen — how anyone could be that irresponsible. And I thought, what data was in there that may compromise sources and methods.

REICHARD: But just a few short months later, classified documents from Biden’s time as vice president were discovered at his old Washington office. And then more were found at his personal home in Delaware, including in his garage.

EICHER: Last week, Attorney General Merrick Garland appointed a special counsel to look into the president’s possession of the documents.

So what could this mean for the president legally and politically?

Here to talk about it is Mark Caleb Smith. He’s a political science professor at Cedarville University in Ohio.

REICHARD: Professor, good morning!

MARK CALEB SMITH, GUEST: Good morning. Good to be with you.

REICHARD: Glad you’re here. Professor, explain what it means that the Justice Dept. has appointed a special counsel to look into this.

SMITH: Basically, they've decided that there's enough present to warrant further investigation. And since we're talking about the President of the United States, someone who's obviously in a sensitive position, handing that off to someone who's supposed to be a little bit more objective and detached from the process, like a special counsel, makes a lot of sense. So, this isn't an unusual process to take for a special counsel to be brought in at this point. And I think for Attorney General Garland, it was a pretty easy decision based on what he'd previously done with President Trump.

REICHARD: I haven’t heard too many complaints from Republicans about Garland’s choice. Robert Hur is the special counsel appointed to look into this. He is a former US attorney appointed by President Trump. And he once clerked for former Supreme Court Chief Justice William Renquist. … Mark, what was your reaction to the announcement of Hur as special counsel?

SMITH: I think for Garland, it's a good choice. It'd be hard to argue that he is biased toward President Trump in any sort of way, and it'd be hard to argue that he is going to be overly biased toward President Biden. I think your biggest fear in these situations is you put someone into the system who's not going to be appeared to be impartial or, if they are partial, it's going to be in the wrong direction. But here, I think Garland has avoided that. And so you can expect him to be tough, which they're supposed to be tough in this process. But hopefully be fair as well.

REICHARD: And just to be clear, at the end of the day, it will be Attorney General Garland’s decision as to whether to prosecute either Trump or Biden, correct?

SMITH: Yes, that's correct. So based on evidence that's brought forward, it'd be up to the attorney general to make that decision. And it'll be interesting to see how the two situations are handled similarly or differently once we get to that point.

REICHARD: If Garland were so inclined to pursue charges against Trump, does this make it tougher for him to do so?

SMITH: I think that it really is going to come down to the facts and we really don't know the facts at the moment. I think just sort of as an outside observer, we might expect him to do the same thing in both cases. If you're going to prosecute one, you got to prosecute them both. If you're going to let one off, you got to let them both off, whatever that means. But I think there is still a real possibility that there's a factual difference at work here. And if there is a strong, factual, legal difference that can be justified in a court of law, then a different choice, depending on the case, might happen. And politically, that'd be explosive. I mean, let's not pretend otherwise. But legally, it could be the right thing to do. We'll just have to wait and see.

REICHARD: Democrats and the White House say this situation is quite different from Trump’s ordeal in that Biden is fully cooperating. What do you say to that argument? Does that help Biden in any way, legally or politically?

SMITH: I think legally, it probably does help him. I think one of the things that got President Trump into trouble with his classified documents was the long drawn out process, negotiations back and forth, claims that they had already been declassified, those kinds of things potentially set President Trump up for a charge of obstruction of justice. From what we know, as of now, the Biden White House has been pretty forthcoming with the documents once they've been discovered. And they've been turned over according to procedure. And that doesn't mean he had them properly or that no laws were broken. It just means at least that part of the process is very different. So I think they have a reasonable argument that there are differences at work. But politically speaking, I'm not sure that's gonna matter. You know, politics is not the place for nuance at the moment. The law is where you can find some of that nuance, potentially. But politically, I think this is very damaging for the president.

REICHARD: One other difference is that Trump’s documents were from his time as president. Biden’s documents were from his time as vice president. A vice president does not have the same authority as a president to declassify documents. Do you think that matters?

SMITH: It could. It could matter. From what little I know about the ins and outs of the vice presidency, he does have the ability to classify some information on his own. But that would be the only kind of information that he can then declassify after a certain period of time. So it would depend on a very particular kind of information for President Biden to be able to claim that. But I think most observers, most political observers are going to look at that and say, Yeah, you know, you're both in office, it looks like you both made some pretty serious mistakes.

REICHARD: Strictly from a political standpoint, what do you think this means for the Biden White House and Democrats? Is it just an embarrassment that’s going to blow over or is it something more meaningful?

SMITH: I think right now, it probably is just an embarrassment that will eventually blow over. But that's assuming that there are no more documents and it's assuming that we won't be subject to sort of a constant drib and drab of documents that come out over the next few weeks or a few months. That's also assuming that the information within those documents is relatively, I don't know if I want to use the word benign, but not as damaging as it could possibly be. You know, there's certainly levels of top secret information. Some of that is restricted and could reveal sources, could reveal intelligence methods that we use. I think worst case scenario for the president would be that it's information that reveals information about himself or about his family in a damaging way. If that kind of information comes forward and that's the information that he had and protected it, that I think that could be incredibly damaging for the White House. And so I think as of right now, it probably blows over. However, as you know from scandals of the past, we still potentially have a long way to go.

REICHARD: Finally, what about this idea that Biden’s mishandling of these documents was known in November but the news was held back until after the election?

SMITH: I think this is probably the most problematic part of this for the Biden administration. The information was known and they've claimed to be a transparent administration. They, as you noted before, have been extremely critical of President Trump and his handling of classified material. And the fact that they sat on this for a couple of months and then it just came out because of reporting, not because of their own admission, I think it's very damaging to the White House. And I think, as of now, they really can't avoid this criticism, you know, that this is handled in a purely political manner. And it was done to avoid any missteps in the midterm elections and so I think, at least from a political point of view, that's where they're weakest at the moment is the timing of this just really looks bad.

REICHARD: Mark Caleb Smith from Cedarville University. Professor, thanks so much!

SMITH: Always a pleasure. Thank you.

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