CNN Legal Analyst Admits DOJ Can’t Charge Trump Over Classified Docs Without Charging Biden Now

“Really?” Poppy Harlow exclaimed. Yes, It is really. Theoretically the Department of Justice could still indict Donald Trump for his alleged criminal violations of classified documents.

In reality, though, Merrick Garland would have to explain why he’s not charging Joe Biden for the same crimes, as CNN legal analyst John Miller explains. They may not be the same situation, but it’s close enough to make it awkward:

DON LEMON – I said it last night, Merrick Garland is in an odd place. They didn’t know what was coming. It was November. I said, well, you know, look, I’m just asking here. Maybe Merrick Garland didn’t. Everyone’s wondering why he didn’t act, did he know this was coming?

JOHN MILLER – The White House is a news agency that knows how to quickly get information out and how to slow it down. You can see the analysis in the fact that they did the contretemps and announced it after that.

KAITLAN COLLINS: I’m so interested that you said it helps Trump because I was talking to people close to his legal team yesterday and they were saying this is a huge gift to them because they believe, you know, politically speaking, of course, the obstruction is obviously the big part of the Trump story. He refused to give them up for so long. But they believe it helps make their argument that it’s pretty easy actually, to innocently and mistakenly perhaps take classified documents. Does this actually stand up in court

JOHN MILLER: So it doesn’t hold up in logic.

KAITLAN COLLINS – But is it able to stand up in court?

JOHN MILLER: Let alone court. It is a valid argument in court. Both are covered by the law. It’s just, you know, the balancing act of you’ve got a special prosecutor, you know, Jack Smith, who’s going to is going to make a recommendation, and then the attorney general is going to have to make a decision. These developments have placed him in an awkward position in terms of decision-making.

The two situations aren’t identical, at least at the moment, but they don’t appear to be different enough to matter politically. Miller also notes that there is an obstruction charge that could be brought against Trump, an element that doesn’t appear to be present in this instance, at least not Yet. It would be more difficult to charge obstruction without an underlying criminal offense for document retention.

Katie Cherkasky, a former federal prosecutor, also highlights the distinction on obstruction. But she also points out that the underlying criminalities are too similar to be ignored by prosecutors and maybe even a court.

CHERKASKY, I think again about the obstruction that is not in this case. But the mishandling of classified documents — if that is an offense that is being looked at, that happens at the time the documents are removed, potentially, if they’re done so under inappropriate circumstances. Legally, I believe these analyses are much closer to the truth. …

Merrick Garland seems to be in a difficult spot. … Ultimately, I think there’s going to need to be a special counsel appointed to look into whether this is a criminal offense or whether this is something that is prosecutable.

The problem for the crowd — mainly in the media — screeching that Trump’s obstruction makes this different is the precedent set by the DoJ for Hillary Clinton. The retention of documents was due to her home-brewed e-mail system. Many thousands You can store classified data/documents for as long as six years. Clinton’s motive for employing this system for her official e-mails was clearly to obstruct Congressional review of her communications at State. Clinton also instructed her underlings not to remove classified markings from emails before they were sent, which is illegal and a clear sign of obstruction. Clinton refused to give access to the email server and erased half the 65,000 emails. She claimed that the emails were personal. It is also an act of obstruction.  Yet, the DoJ refused Clinton to be charged or prosecuted, claiming that Clinton was innocent. “intent” that doesn’t exist anywhere in statute and that her behavior completely contradicted anyway.

So Merrick Garland’s decision was already awkward even before this latest development belatedly emerged. Now, we have a sitting president accused of doing exactly what Trump is being charged with. And this was without even the pretense of declassification. If Garland presses forward on a prosecution against a Republican candidate while taking a pass on two Democrats for the same crime, it’s going to look Very, very political. After that, it will be Katy bar-the-door in any Republican administration that is responsible for political prosecutions. This next Republican administration could be closer than Biden or the media believe.

Update: CNN Reports that the classified material related to Ukraine — which is where Hunter was cutting deals at the time:

Among the classified documents from Joe Biden’s time as vice president discovered in a private office last fall are US intelligence memos and briefing materials that covered topics including Ukraine, Iran and the United Kingdom, according to a source familiar with the matter.

A total of 10 documents with classification markings were found last year in Biden’s private academic office and they were dated between 2013 and 2016, according to the source.

Hmmmmmm. That doesn’t sound like a coincidence.

The latest episode of Podcast: The Ed Morrissey Show Now up! Today’s show features:

• Voters had a great look at the next two years with Republicans winning the House and Ron DeSantis taking his place on the national stage. Andrew Malcolm and me discuss the differences and the similarities.
• We also examine the collapse of the Russian interference panic at Washington Post.
• Wyoming radio host Jeff Wallack from WyomingIsRight.com joins the discussion to discuss his interview with Donald Trump and his views on the 2024 campaign.
• Also, check out my latest editorial for SRN News/Tonwhall Commentary
  

The Ed Morrissey Show can now be downloaded and streamed at  Spotify, Apple Podcasts, The TEMS Podcast YouTube channel, and Rumble as well as our in-house portal Visit the #TEMS Page!

*As an Amazon Associate I earn from qualifying purchases