It is often said that justice must not only be done, but must be seen. The appointment of a special counsel to investigate President Joe Biden’s alleged mishandling of classified information was made not for justice to be done, but rather for the appearance of justice to be satisfied.
Everyone knows that President Biden will not be indicted for classified material showing up in various locations. First of all, a sitting president cannot constitutionally be indicted. The Justice Department recognizes that in its own rules and guidelines. Nor is this a case where others may be subject to indictment. Finally, even if Biden were to be found to have committed criminal offenses, they would not rise to the level of high crimes and misdemeanors, which are the criteria for impeachment.
So why then did Attorney General Merrick Garland appoint a special counsel? The answer is clear: because he had previously appointed a special prosecutor to investigate Donald Trump. Since both men are likely to be running against each other for president, it is imperative that they be treated equally. Even if the facts differ somewhat, the bottom line is that both seem to have mishandled classified material.
At a time when Americans are deeply divided and agree about so little, there is one conclusion that seems to unite us all: the vast majority of Americans strongly believe that there are differences between what Biden and Trump allegedly did. That’s the agreement. But half the country seems to believe that what Biden did was worse, while the other half believe that what Trump did was worse. Very few seem to believe that they are equally culpable.
My own belief is that every president and vice president has probably mishandled classified material in some way. This is not because of any malevolent intent. None has given or sold such material to our enemies. The mishandling was probably either careless or designed to help a former official in writing their memoirs. The case of former National Security Advisor Sandy Berger is an example of the latter. He stuffed improperly possessed material into his socks to facilitate his writing his memoir. The other recent examples – Hillary Clinton, Donald Trump, and Joe Biden – seem like instances of sloppiness, laziness or convenience.
There should be full investigations of all of these breaches of security, so that Congress can clarify and tighten up the rules. It should not be the law that the president can declassify anything, without notifying anybody or making any record. But that seems to be the current rule, at least as it applies to potential criminal liability. But special prosecutors are not supposed to be appointed to do general investigations leading to changes in the law. That is the job of Congress. Special prosecutors are supposed to determine whether their target should be indicted and prosecuted. We can be fairly certain that the end result of these investigations will be decisions not to prosecute either Biden or Trump.
Even if one or both special prosecutors were to recommend indictment – an unlikely prospect – Attorney General Garland would not follow their advice. Only he knows that if only one of them were to be prosecuted, the divisions in this country would be greatly exacerbated. So the end result will be that neither is prosecuted.
In our current world of tit-for-tat, these alleged violations cancel each other out. This may not be the case as a matter of law – one may be far more criminal than the other – but it is certainly so as a matter of realpolitik. And we live in a world where the law bends to politics.
So let both special prosecutors spin their wheels. Let them dig deeply. Perhaps they will find new evidence that distinguishes one case so sharply that the public would accept the prosecution of one without the other. But that is highly unlikely. Each side will continue to claim that the other is more at fault and should be prosecuted. These partisan demands for “justice for me, but not for thee” will also cancel each other out in the court of public opinion.
The Democrats started all this by their showy overreaction to Trump’s derelictions, manifested by an unjustified search and seizure. President Biden couldn’t understand how a president could be so insensitive to security concerns by putting sources and methods at risk. Now former president Trump is throwing that statement back at his rival.
That is what the tit-for-tat weaponization of justice has done. We are all the poorer for it.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and and the author most recently of “The Case for Color Blind Equality in the Age of Identity Politics,” and “The Case for Vaccine Mandates,” Hot Books (2021). Read more of Alan Dershowitz”s reports — Here.
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