O Lucky Man

New on The King’s Necktie: Biden’s gift to Trump jeopardizes what seemed like a slam dunk.

As many many observers have noted, Donald Trump is the luckiest motherfucker on the planet.

Born into obscene privilege, he has led a life cosseted in unearned wealth and power, exempting him from consequences for 72 years of unrelentingly shitty behavior. He has avoided the blowback from a business career rife with corruption, fraud, tax evasion, and racial discrimination; escaped serving in Vietnam; evaded judgment in lawsuits too numerous to count; and even successfully dodged multiple credible accusations of sexual assault and rape.

Indeed, he seems never to have been made to answer for any of his ghastly actions throughout his entire pathetic, misbegotten life.

That pattern most certainly continued when it came to his behavior in the White House, behavior that included making kidnapping an explicit matter of state policy, poisoning the national bloodstream with the normalization of Orwellian disinformation, blackmailing foreign heads of state for personal gain, lining his pockets with bribes from foreign powers, exhibiting depraved indifference in (non)response to the COVID-19 pandemic, and—oh yeah—fomenting a violent attempt to overturn a free and fair election.

Yeah, yeah, efforts are underway to hold him accountable for some of that. But I’m getting lightheaded from holding my breath.

One would think that this lifetime of impunity would make Don happy. Ecstatic, even. But on the contrary: one of the few sources of solace we have when it comes to Trump is that, despite this outrageous run of good fortune, he is demonstrably the most miserable, tormented human being I can think of. The man appears to be in a constant state of rage 24/7/52.

Hmmm. Maybe there’s such a thing as karma after all. Unfortunately, he feels the need to take that rage out on the rest of humanity. But that is a story for another day.

But I bring up Trump’s lifelong run of good fortune because—in case you missed it—he recently got another insanely lucky break.

IT’S ALL GOOD, MAN

Of the various legal issues currently bedeviling Trump, the Mar-a-Lago documents case was the cleanest, the simplest, and seemingly the most likely to result in a criminal conviction.

His responsibility for January 6th might well be the worst, and his guilt on that count is blazingly evident, but it’s still complicated and hard to prove in a court of law. The attempt to strongarm Georgia election officials is pretty clearcut, but not an obvious slam dunk, legally speaking. (“Juries—right?” as Saul Goodman would say.) The various criminal and civil charges against him and the Trump Organization for tax, bank, and real estate fraud and other corrupt business practices are complex and arcane, even if his guilt there is also pretty self-evident, and has been to New Yorkers for decades.

But brazenly stealing top secret documents, insisting that he had the right to do so, openly defying repeated efforts by the National Archives and Department of Justice to get them back (including ignoring a subpoena and falsely swearing to have complied), deploying laughable claims that he declassified those documents en masse just by thinking about it—except he didn’t have to, because he is a god-emperor and can do whatever he wants!—is something anyone can understand. Finally, finally, Trump looked he was going to get his comeuppance.

But because a smaller number of classified documents were recently discovered in locations connected to Joe Biden—a think tank office he used after his vice presidency, and his private residence in Delaware—that assumption has been blown to smithereens.

Nothing is yet settled, and it won’t be for a long time to come. The Biden story is in its earliest days and all the facts are not yet known. The prosecution of Trump may well carry on unimpeded. But it might not.

So we might as well brace ourselves for the very real possibility that, believe it or not, as incredible as it seems, Donald Trump may skate out of this one too.

VIVE LA DIFFÉRENCE

Here we are contractually obligated to note that the two cases are vastly different.

The  number of documents found in Biden’s possession is far smaller than in Trump’s—around twenty—and we don’t yet know how sensitive they are. (The FBI seized some 11,000 documents from Mar-a-Lago, including more than 70 marked secret or top secret. That haul reportedly included some of the most top secret compartmentalized intelligence there is, including nuclear secrets, and information about human intelligence—which is to say, spies—putting the lives of American agents at risk.) Biden, unlike Trump, appears to have had no knowledge of their existence. All indications are that they were put there by accident, and as far as we yet know, never touched in six years.

More to the point are the circumstances in which the documents were uncovered, and the actions of the representatives for the two parties—and the parties themselves—after their existence became known. Biden’s people found the documents on their own, unbidden, and immediately notified the proper authorities, meticulously following DOJ and National Archives protocol in turning the materials over and cooperating with the subsequent inquiry.

By contrast, the hundreds of sensitive government documents in Trump’s possession seem to have been deliberately put there at his direction. Knowing this, NARA and the DOJ had been trying to recover them for almost two years, bending over backwards to be solicitous of the former president, but meeting only resistance, obfuscation, and outright defiance in return. Trump’s lawyers even signed a sworn statement that a “diligent” search had been conducted and all relevant documents had been returned. (Odds that Trump pressured those lawyers to make that statement are high.) As a result, DOJ ultimately decided it needed to issue a subpoena—which, per above, was brazenly ignored—and then, finally, obtain a warrant from a federal judge and have FBI agents conduct an unprecedented search of a former president’s personal residence.

So, yeah, not exactly apples to apples.

In writing about the Mar-a-Lago case last summer, and Republican attempts to draw an equivalence with Hillary’s email controversy, I compared the latter to forgetting you had a pocketknife in your carry-on bag and having it seized by the TSA, and the former to smuggling a boxcutter onboard and crashing the plane into the World Trade Center. The same sort of analogy applies here. In fact, Biden’s behavior is even more innocuous: Hillary got caught with that pocketknife; Biden’s people discovered theirs themselves and voluntarily turned it over to the TSA’s blueshirts.

I guess no good deed goes unpunished.

Let me be clear: the presence of mishandled classified material, even if accidental, even if never touched, even if Biden didn’t know about it, is still an egregious offense. It is also highly embarrassing to Joe, who prides himself on his national security bonafides, and has attacked Trump on that count. It will also have very unwelcome political consequences for him. But to compare it to what Trump did is absurd.

Yet compared it will be, and in the end, the differences may wind up mattering very little from a political perspective.

WHAT DID THE PRESIDENT KNOW AND WHEN DID HE KNOW IT?

Far and away the most damning action Biden’s team committed was the delay in making the discovery public. The first classified documents—numbering about ten, we are told—were found at the Penn Biden Center in Washington DC on November 2, 2022, just six days before the midterms. The second set—of six—were found at his home in Wilmington, DE on December 20, in the same locked garage where Biden keeps his beloved, vintage 1967 Corvette. (In The Onion’s old long-running, Obama-era gag about him, it was a Trans Am.)

Then this past Saturday, January 21, federal agents conducting a consensual 13-hour search of that Wilmington home without need for a warrant, turned up six more documents.

Oy.

The decision not to go public with the first discovery, on the eve of what promised to be a photo-finish midterm election, is both obvious and understandable, if not exactly defensible. It is entirely possible that Biden & Co. decided that absorbing the eventual criticism was worth it and survivable, as opposed to jeopardizing that crucial election.

But they are denying even that degree of pragmatism. 

According to reporting in The Washington Post, the Biden team is portraying that delay as a good faith effort to let the Department of Justice complete its investigation without a media frenzy. That is a reasonable explanation. (It is certainly true that the DOJ preferred to carry out its investigation out of the spotlight.) Of course, it is also a very politically expedient one, hinging on the hope that the White House could announce the incident along with the “all-clear” from DOJ in a single swoop.

Now that that hope has cratered spectacularly, the Post reports that “(s)ome at the White House remain furious at Garland and other Justice Department officials, saying the attorney general named a special counsel to pursue Biden even after they did everything his department asked.”

Biden’s top aides were determined that the legal process would override any political moves or public messaging, not the other way around. They did not want to be seen as trying to shape the investigation’s outcome, according to people familiar with their approach. “This is a rule-of-law administration,” said one top official, speaking on the condition of anonymity to discuss a sensitive matter. “We are serious about it. We don’t comment on ongoing investigations. So we were always walking a fine line here, in that we were in one.”

Not sure that passes the sniff test. I certainly wouldn’t have accepted that explanation from the Trump White House, and while Team Biden’s has credibility Trump & Co. will never have, it’s still a suspect claim. Surely practical considerations—a la Comey’s press release about re-opening the Clinton email case on the eve of the 2016 election—were on Team Biden’s collective mind, as well they should have been. But the fact is, that delay now looks like a shameless lack of transparency—the very opposite of the deprioritizing of political considerations they claim to have aimed for. (I won’t say it was an outright coverup, because surely they knew word would eventually get out.)

It's amazing Biden’s lawyers who discovered the first box at the Penn Biden Center didn’t just burn it. A box that had been sitting in a closet for almost six years, that probably no one even knew was there? But as Nixon would say, “that would be wrong.”

The New York Times recently published a comprehensive report on how and why the White House delayed for so long, concluding that Biden suffered from a disconnect between the thinking of his lawyers, whose concern rightly was and is his legal exposure, and of his advisors, whose concern is the murkier area of public relations and political considerations.

The decision by President Biden and his top advisers to keep the discovery of classified documents secret from the public and even most of the White House staff for 68 days was driven by what turned out to be a futile hope that the incident could be quietly disposed of without broader implications for Mr. Biden or his presidency.

The goal for the Biden team, according to people familiar with the internal deliberations who spoke on condition of anonymity, was to win the trust of Justice Department investigators and demonstrate that the president and his team were cooperating fully. In other words, they would head off any serious legal repercussions by doing exactly the opposite of what the Biden lawyers had seen the Trump legal team do.

In the short term, at least, the bet seems to have backfired. Mr. Biden’s silence while cooperating with investigators did not forestall the appointment of a special counsel, as his aides had hoped, but still resulted in a public uproar once it became clear that the White House had hidden the situation from the public for more than two months.

(T)he strategy has left Mr. Biden open to withering criticism for concealing the discovery for so long.

The Washington Post’s Jennifer Rubin faults Biden’s lawyers for neglecting “the political implications of their conduct in favor of trying to placate the Justice Department. The lawyers seem to have imagined that they could clear everything up before it became public. That was a naive assumption in today’s political climate.”

LET THE PUNISHMENT FIT

For political reasons—that is, to protect the appearance of objectivity in the Trump case (as well as its genuine objectivity)—the appointment of a special counsel was all but inevitable, and Team Biden—which prides itself on being a group of savvy, experienced DC pols—knows that very well, or should have. So its anger rings a bit hollow.

As Jennifer Rubin writes, “In fact, there is no indication that Biden’s team could have done anything to avoid the appointment of a special counsel,” given Garland’s promise “from the get-go that one of his top priorities—if not the top priority—was restoring the integrity of the Justice Department.”

For all the talk of Garland as an ivory tower idealist living in his own rarefied world, knowledgeable insiders attest that he is in fact very much aware of the political context and ramifications of all his actions. Indeed, that awareness drives the very cautiousness in the various Trump investigations for which he received some pretty scathing criticism from the left, even as the right absurdly tries to portray him as some sort of Javert.

(Meanwhile, Ankush Khardori of Politico speculated to MSNBC that he thinks Garland is furious at the White House for this tectonic development, and its carelessness, which complicates the case against Trump that he and his team have so meticulously conducted.

Yet there are also advantages for Biden in the appointment of a special counsel. As Heather Cox Richardson notes, that Republicans will now be “(u)nable to attack Biden for having documents marked classified in his possession without also faulting Trump.” Therefore, their only play is to try to suggest that Biden is being treated differently than Trump. But Garland’s speedy appointment of a special counsel undermines that.

That would be true in a sane world. But as we all know, MAGA Nation will make that claim regardless.

The other Republican approach, per the Bannon playbook, is just to “flood the zone with shit,” to muddy public perceptions and imply to low-information voters that Biden is just as bad as Trump on this count. And it is already working: Rubin notes that a recent Quinnipiac poll found nearly 40 percent of Americans think “Biden should be prosecuted—despite the absence of any evidence that he even knew that he was in possession of the documents.”

Theoretically and logically, then, nothing about the Biden case, no matter what is eventually revealed, should impede or derail the prosecution of Trump, which is already much further along. Indeed, there is a veritable consensus on that point among top legal experts. Even the conservative pundit David French, formerly of National Review, a former US Army JAG officer who takes a hardline on what Biden and/or his staff have done, writes in The Atlantic that the new revelations do “not mean that the DOJ should refuse to prosecute either (Trump or Biden), adding, “ If the DOJ finds evidence of willfulness or obstruction—from any person—then it should file charges, no matter the identity of the defendant.”

That view is well represented in a recent piece in The Atlantic titled “Biden’s Classified Documents Should Have No Impact on Trump’s Legal Jeopardy,” by three prominent lawyers—who collectively count among their previous jobs US Attorney, deputy solicitor general, and deputy attorney general (under Republican presidents, no less). The authors write that even as some attempt “to create a false equivalence between the two cases,” in truth “only the most superficial parallel can be drawn.” The authors applaud Garland’s decision to appoint a special counsel, and the choice of Robert Hur, a Republican and Trump appointee as US Attorney specifically, but note that nothing in the Biden case, no matter how it turns out, should prevent the proper investigation and potential indictment and prosecution of Trump, which turns largely on his “concealment and evasion.” Which he is accused of conducting “willfully and unlawfully.”

The apparent obstruction of justice—with evidence pointing to Trump’s direct involvement—makes up the serious misconduct here, more serious than a former president simply having removed documents from their proper place….

Willful and unlawful intent requires knowledge that one is breaking the law, and Trump was placed on notice over the course of many months, and asked numerous times by multiple federal agencies to return all classified and presidential records. He still did not.

They also note that the arguments of Trump’s lawyers effectively admitting that Trump deliberately took those documents and kept them even in defiance of formal US government demands for their rightful return, and the fact that “a federal judge has already determined, in approving the Mar-a-Lago warrant, that there was probable cause to believe that Trump intended to impede or obstruct an investigation or NARA’s proper administration of government records, and likely both.”

So I say, let both cases proceed and the judgments meted out as the facts dictate. Rubin again:

(T)he public’s confusion should not affect the evaluation of special counsel Jack Smith, who is leading the investigation into Trump’s situation. Unlike Biden, Trump presided over movement of the documents; personally went through them; failed to return the documents despite subpoenas and then allowed his lawyers to falsely state that he possessed no more classified documents; and made numerous statements arguing that he was entitled to keep them. It should be easy to prove “gross negligence” and to demonstrate the aggravating factors needed to prosecute his case, such as obstruction.

The White House might be upset with Garland’s decision to appoint a special counsel to investigate Biden, but that should be temporary. Given the facts that are known, Biden should be “cleared” in a reasonable timeframe as Jack Smith independently contemplates whether to charge Trump.

That’s as it should be. We simply cannot accept a system that ensnares someone who attempts to cooperate with investigators while simultaneously allowing a megalomaniacal former president to walk off with top secret documents without serious consequences.

But that is a logical and legal judgment, not a political one. And Rubin’s very cogent argument will have no bearing on the hyperpartisan, tribalized politics of America today.

THE DOORS OF PERCEPTION

We don’t yet know all the facts, but even a set that is favorable to Biden is still a gamechanger.

Biden has insisted that he has done no wrong, and that his people have done everything by the book in cooperating impeccably with the DOJ ever since the documents were first uncovered. “There’s no there there,” as he said. (I love hearing a US president quote Gertrude Stein.)

But from the moment the story broke, the GOP has been in a festival of schadenfreude to rival the one Democrats and progressives (like myself) engaged in during the humiliation of Kevin McCarthy last week. Gleeful howls about hypocrisy have filled the air, from RNC headquarters in DC to Mar-a-Lago to Fox TV headquarters on 5th Avenue, even as Murdoch World was embroiled in the Dominion Voting Machines lawsuit this week.

David Smith writes in The Guardian that “There’s One Winner in the Biden Documents Discovery: Donald Trump,” quoting Larry Sabato, director of the Center for Politics at the University of Virginia: “This may be pure sloppiness on Biden’s part or the Biden team’s part but it doesn’t matter. In the public mind, now they will say, ‘Well, a pox on both your houses. You’re both guilty. Shame on you both.’ It’s over….It’s just a real distraction. It was totally unnecessary. Every White House makes mistakes and this is a big one they made.”

Smith concurs with the legal community that the new twist “is unlikely to affect the Justice Department’s decision making with regard to charging Trump. But it could make a criminal case a harder sell to voters.” And if it’s harder to sell to voters, it might lead to fraught conditions should charges be brought—not that that’s a reason to refrain—or worse, militate against bringing them at all. In which case, Trump’s legal jeopardy has been changed.

Smith quotes Jay Town, formerly the US Attorney for the Northern District of Alabama under Trump, who told the Associated Press that while he doesn’t think the Biden case “impacts Trump’s legal calculus at all….it certainly does impact the political narrative going forward. To the extent that the political narrative is a consideration, it does make it harder to bring charges against former President Trump.”

Trump may yet be prosecuted and even convicted and punished over Mar-a-Lago. He should be. But it has always been a fantasy that even that outcome would mark the end of his political career and influence. For his diehard fans, and even more casual supporters within Republican circles, nothing will make them turn on him. They would vote for him even if he was languishing in federal prison, pumping iron and trading cigarettes…even if he were seen killing puppies with Putin….even if he came out in favor of abortion and Satanism and replacing the NFL with flag football, and every game ends in a tie and a Woody Guthrie singalong. Indeed, persecution—er, I mean, prosecution—by the Establishment will only burnish his reputation for that crowd. 

The goal of destroying Trump’s political power is a related but separate matter and Biden’s classified documents troubles represent a serious setback in that effort. Ain’t no two ways about it. Believe me, it pains me to say that, but there’s no point in pretending or deluding ourselves.

In an opinion piece for The New York Times called “Oh, Biden, What Have You Done?” the veteran pundit Jonathan Alter writes, “If you went into a GOP whataboutism lab and asked for a perfect gaffe, you’d come out with the president snapping last week to a Fox News reporter, ‘My Corvette is in a locked garage.’”

As Alter writes, “it’s hard to exaggerate the level of Democratic exasperation with him for squandering a huge political advantage on the Mar-a-Lago story and for muddying what may have been the best chance to convict Mr. Trump on federal charges.” He also notes that while the classified documents will likely fade as a first tier issue in the 2024 election, it is likely to make those all-important independent and swing voters view him more harshly. Not to mention the ammo it gives the GOP.

In the same way that the grueling Benghazi hearings from 2014 through 2016 softened Mrs. Clinton up for later attacks, the Biden documents story may give new life to unproven allegations about his connections to unsavory Chinese executives in business with members of his family. Did foreign nationals have access to the mishandled classified documents? That’s highly unlikely. But Republican lawmakers will use Democratic charges about security breaches at Mar-a-Lago as an excuse to open outlandish lines of inquiry. And the GOP now has subpoena power to delve into red-meat targets like the contents of Hunter Biden’s laptop and any communications on it that involved the current president.

As Alter writes, “But even if Mr. Biden puts wins on the board, survives venomous Republican lawmakers and gets off with a slap on the wrist in the special counsel’s report, the classified documents story has likely stripped him of a precious political asset with some independents and Democrats: the benefit of the doubt. The general feeling that Mr. Biden—like Mr. Obama—is clean and scandal-free has been replaced by the normal Washington assumption of some level of guilt.”

INSTITUTIONALISM TO THE RESCUE….OR NOT

Merrick Garland is famously an institutionalist—to a fault in the eyes of some. In this case, that may prove our salvation.

Going strictly by both the letter and the spirit of the law, Garland may very well conclude that Trump ought to be indicted and Biden should not. Although those optics are bad politically, the argument for so doing might be very sound—airtight, in fact—hewing to the DOJ’s own standards for which cases to prosecute and which ones not. As with Jim Comey’s decision not to recommend criminal charges against Hillary Clinton over her (or her staff’s) email fiasco, Biden’s sins (or his staff’s) may be similarly below the threshold for any kind of disciplinary action short of a scolding. By contrast, we already know that Trump’s own, personal actions—as well as those of his staff—have been outrageous, and merit criminal prosecution by any reasonable standard.

So Garland may carry through with that decision, because it is correct, and because he is a man who lives by such principles.

Orrrrr……

Or his “institutionalism” might lead him to conclude, Gerald Ford-like, that the institution of the presidency, and indeed the very rule of law, would be so damaged by such a decision that it is preferable to let Trump off the hook, even though by all rights he doesn’t deserve it.

If he chooses the former, you can be sure the MAGA Nation will go absolutely apeshit. Needless to say, deciding not to prosecute Trump just because we fear the wrath of Big Lie America would be a horrifically bad decision and a terrible, giving-in-to-terrorist precedent. (Trump himself has already made mob boss-like statements implying the chaos that will ensue in that scenario. “Nice democracy you got here; be a shame if something happened to it.”)

As Khardori writes:

If Garland eventually authorizes prosecutors to indict Trump, he will set the country on an unprecedented path, with no clear answer to how it might end and considerable political risks in every possible direction, whether the effort results in a conviction or not. If Trump does avoid prosecution, the political fallout might be less overt but it would be no less dramatic, since many of the people who believe Trump has committed serious federal crimes will probably not be persuaded by whatever rationale emerges to justify the decision.

I wonder if, when Merrick Garland was growing up, he dreamed of being at the epicenter of a pivotal moment in the history of the American republic. If so, he got his wish.

HANDICAPPING

Do all presidents do this kind of shit with classified materials? Maybe. As this story was going to press, we learned thatclassified documents were just found at the Indiana home of Mike Pence; his lawyers are following the Biden approach in immediately turning them over to the DOJ. But even if that is so, leave it to Trump to take it to a new level, one of arrogant nose-thumbing, norm-breaking, and subpoena-defying, of insistence that he had the right to take anything he wanted from the White House, and keep it wherever he wanted, and show it—or sell it, or otherwise leverage it—to whoever he wanted. (“It’s not theirs, it’s mine.”) In that sense, Pence’s sober reaction to the discovery—an implicit endorsement of Biden’s—may help draw a clear distinction for the public about what is different regarding Trump’s behavior.

In any event, the sloppiness (at best) of all these politicians is mind-boggling to an old intelligence officer and ordinary mortal like myself who was accustomed to handling classified material.

As French writes, we need “to change the culture of accountability so that we’re not consistently expecting less of the most powerful politicians than we expect of the ordinary service members, law-enforcement officers, and diplomats who serve this country sacrificially and often anonymously. Time and again, we have seen politicians escape legal responsibility for actions that would have cost ordinary Americans their careers (in the best case) and their liberty (in the likely case) if they’d treated classified information with similar carelessness.”

Preach, Dave.

Might this keep Biden from running in 2024? That was the silver lining I heard many Democrats—quietly—seize on in the wake of the documents revelation. I understand the impulse, but I would be more onboard if there were a strong heir apparent waiting in the wings, pressuring Biden to step aside gracefully, having already done the nation an epic service.

But right now, there ain’t. As in 2020, Joe Biden may yet be the best bet to beat the Republican ticket, in 2024 no matter who’s on it. Maybe the only one. The documents scandal may not torpedo his chances of winning any more than it persuades him not to run. But it doesn’t help.

Alter suggests that if Biden “takes a leaf from Nancy Pelosi and decides not to run….Democrats would “turn the page,” as Mr. Obama recommended in 2008, to a crop of fresher candidates, probably governors, who contrast better with Mr. Trump and would have good odds of beating a younger Republican.”

And the smiling old gentleman in the Corvette—his shortcomings forgotten and his family protected — would assume his proper place as a bridge between political generations and arguably the most accomplished one-term president in American history.

THE MISERY OF BEING DONALD TRUMP (AND OF BEING AROUND DONALD TRUMP)

In some ways, the paradox of Trump’s lifelong good luck and his persistent state of rage calls into question just how lucky he really is. You never see the guy calm, or relaxed, or laughing at a joke (let alone telling one), or even just genuinely smiling. Contrast that with the easygoing Uncle Joe. Clearly, Trump’s childhood was hideous, at the hands of his equally vile father Fred, who evidently did a number on all his children but Donny especially. One can almost feel sympathy for the young tyrant-in-the-making, who maybe never had a fighting chance.

On the other hand, lots of people endure horrific upbringings at the hands of monsters without turning into monsters themselves, so Trump does not get a pass there. But even without plunging into a debate about free will (spoiler alert: it’s a myth), or nature vs nurture, we can conclude that growing up a spoiled brat is actually not the great gift that it superficially seems. Though my wife rolls her eyes whenever I say it, it could be that maybe the worst punishment Donald Trump will ever face is simply being Donald Trump.

I want to see Trump held accountable for at least one of his many crimes, at least once in his life. But even more than that, I want him destroyed as a political player in American society, his legacy ruined the way it deserves to be ruined, and the ground salted where he once trod. Ultimately, criminal consequences will not be the end of Trump, nor of Trumpism. That will require a broad reckoning with the forces in American life that allowed Trump to rise, and to thrive, in the first place. Ideally, we can still get both.

Over to you, Fani Willis—a nation turns its lonely eyes to you.

********* 

Photo: Chery Dieu-Nalio/Reuters