Jordan Rubin: Here's what Sen. Manchin got so very wrong about Biden's classified docs.
, Sen. Joe Manchin, a conservative Democrat, was legally mistaken to cast the Biden and Trump situations on NBC’s “Meet the Press” as “basically” the same. On the contrary, the differences are plain. But just because Biden isn’t Trump, does that mean he’s free and clear? Of course not.
Yet, comparing Biden’s situation to other cases that the DOJ has refused to bring suggests that, absent damning facts against him that we don’t know about yet, the president isn’t in real legal danger — or shouldn’t be. As a recent piece inobserved, the refusal to charge former Attorney General Alberto Gonzales should lead to the same conclusion for Biden. Gonzales, who served under President George W. Bush, was found to have written notes about classified documents, stored them improperly, and was seemingly cooperative with the investigation into his conduct. Likewise, the DOJ’s decision not to charge former Secretary of State Hillary Clinton for using private email servers still shows that Biden won't likely be charged, based on what we know — assuming the government abides by past precedent. As then-FBI Director James Comey said in 2016 when explaining why the DOJ didn't charge Clinton and how her case compared to others: All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.. But we should keep our eyes open to the possibility. There’s no doubt that special counsel Robert Hur will be doing so, however legally dubious Hur’s appointment by Attorney General Merrick Garland may have been, given the apparent lack of criminality in Biden’s case. Finally, for those focused on the real-world legal consequences of both the Biden and Trump matters, it's important to remember that a strangely important fact could be their respective occupations. As we were reminded during the Trump-era special counsel Robert Mueller’s investigation, the DOJ has a policy against indicting sitting presidents. So even assuming, very hypothetically, that Biden were as guilty as Trump, then that policy would bar charging Biden while he’s in office, a reality that no doubt motivates Trump as he seeks to retake the White House in 2024. If Biden runs for re-election, however, it's less likely that he'll be doing so to stay out of prison.Jordan Rubin is a blog writer for MSNBC focused on legal analysis. He previously served as a prosecutor for the Manhattan District Attorney’s Office and is the author of the forthcoming book “Bizarro” about the secret war on synthetic drugs. Prior to joining MSNBC, he was a legal reporter for Bloomberg Law.
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