A version of this story appears in CNN’s What Matters newsletter.Sign up for free to receive it in your inbox here.
CNN
—
It’s easy to lose track of the thread if you’re not diligently following drop-by-drop of the various classified document scandals involving President Joe Biden, former President Donald Trump, and former Vice President Mike Pence.
Suffice it to say that criticism of Biden is on the rise, even among Democrats. The Biden paperwork investigation is a foil to a larger investigation into Trump’s behavior, not going away. And with the advent of the Pence issue, this becomes a total bipartisan sloppy trend.
I spoke with CNN Senior Legal Analyst and former U.S. Attorney Ellie Honig. He is publishing his new book, Untouchable: How Powerful People Get Away With It.
I wanted his perspective on how to view recent developments. Our conversation over the phone is below.
wolf: What are your thoughts on this recent CNN report? That DOJ CONSIDERED SEARCH WARRANT Before Biden’s lawyers let the FBI into the president’s Delaware home?
Honig: i think it was fun to see DOJ was considering seeking a search warrant. Because if documents exist in the world under these circumstances, DOJ has three options for her:
- If you have complete trust and are comfortable doing it this way, the easiest way is to let the Biden team do it themselves. Do your search and give us what you got. Clearly it wasn’t good enough or satisfactory for DOJ.
- They ended up going with the second option. This is what we call consent search. So we’re going to do this search. I’m asking for permission to do a search.
- Biden’s team then had two options. You can either agree to the investigation, or the DOJ will go to the third level and risk going to court and asking for an investigative warrant. That’s what happened at Mar-a-Lago.
Another interesting point for me is that prosecutors and the DOJ only issue search warrants if they can prove that there was a cause for the alleged crime and that evidence of that crime can be found where they are. I know I can get it.Searching.
This indicates that the DOJ at least considered the possibility that it had to go to a judge and establish probable causes.
wolf: And that they were willing to do it. They happily took the next step.
Honig: It shows they felt an FBI search was necessary, with or without the consent of Biden’s team.
I also think it undermines some of the arguments that FBI and law enforcement tactics are being used unfairly.
People sometimes say Did the FBI get Biden to agree to the search? ’ If Biden didn’t agree, they would have considered issuing a search warrant, much like Mar-a-Lago.
wolf: What about other recent stories, that The National Archives Wants Several former president and vice president Read their documents? If the current president had classified documents that the current president shouldn’t have, the former president had classified documents that the former president shouldn’t have, and the former vice president had classified documents, we can infer that all these other former presidents had classified documents. increase.
(Representative four successive presidents all So far He told CNN he has no classified documents.)
Honig: I have to pose a question here – how common is this? We are 3 to 3. Trump, Biden, and Pence all had classified material.
Given these three revelations, do former presidents and vice presidents all have classified documents?
The answer we’ve heard so far is, generally speaking, from the former, well, we’ve already turned everything upside down. It slips through the cracks and is to be found years later. Interesting to see what the pointed archives or the DOJ claim. I need to go back to my lawyer to search all archives and double check.
That puts the former in an interesting position. They can say, “Okay, and I’ll risk finding more sensitive documents.” Or you might say “No, I think you’ve already done this”, but this doesn’t look very transparent and doesn’t work very well. They have an interesting kind of dilemma here.
wolf: Clearly, we want equal treatment between Republicans and Democrats. But what rocked all of this was Trump’s refusal to turn over the documents. Do you think the way Garland (Attorney General Merrick) is handling this creates a false equivalence between Trump’s actions and those of Pence and Biden with whom he cooperated?
Honig: No, I believe each of these cases is based on its own facts. These three cases have important similarities and crucial differences.
Merrick Garland’s textbook job is to evaluate each one on a case-by-case basis, separate from the others, and determine if this crosses the line of crime.
As a practical and political matter, I think the fact that there are three of these now makes prosecuting just one of them more politically difficult.
From what we know so far, Trump’s actions seem to have been the most serious. We’re talking about the maximum number of sizable documents and the least cooperative (perhaps disruptive) response.
But that’s not necessarily all, and it ends up all the prosecutors are trying to ask.
- Did any of these individuals know that these documents were in their possession?
- Was there any criminal intent associated with them?
Numbers matter, but in the end there could be 10,000 documents with criminal intent on one document. I have no idea if these documents are in a warehouse I’ve never been to, or if they’re hypothetical. It all comes down to turning on knowledge and intention.
wolf: It is a practice inherited by many presidents in the Department of Justice that a sitting president cannot be indicted for a crime. Is it your sense that the Special Counsel and his FBI searching Biden’s house are seen differently under Garland’s oversight?
Honig: No. First of all, I’m glad you called it custom. Some say the DOJ cannot indict a sitting president. To be fair, the DOJ has long decided not to try.
That said, a sitting president can certainly be criminally investigated. We’ve seen it with Donald Trump. He was being investigated by Robert Mueller during his tenure. There is no policy problem with investigating the current president.
The question is, what do you do once you conclude that there was a crime? Mueller thinks he groped that question by issuing an abusive report that did not explicitly state whether he believed a crime had been committed. He left us with a bureaucratic giant jumbo that if I could put him away, I would, but I can’t, so I won’t. It confused us all and went nowhere.
If the special counsel in the Biden case concludes that a crime was committed by Robert Herr, the evidence so far does not tell us, but we have not seen evidence that clearly points to a crime. That conclusion, how would he express it?
If you look at the rules, I think that’s the job of the special prosecutor.
In fact, I think Mueller failed at that. And I think the Special Counsel has a duty to say: Under long-standing DOJ policy, he cannot be prosecuted. But my findings are either he committed the crime or he didn’t. ’ And that can be addressed when that president resigns.
wolf: Trump has a special adviser, Biden has a special adviser. Ultimately, though, it’s Garland, or whoever was the attorney general at the time, who decides whether to prosecute uncovered crimes. This is a snowball responsibility that no previous Attorney General has ever owed to a current or previous President.
Honig: Merrick Garland is in a unique position both historically and legally. The law says he must attach “great weight” to the special counsel’s recommendations, but ultimately it’s up to Merrick Garland to decide whether to indict Donald Trump or Joe Biden. will be
Merrick Garland is the ultimate bureaucrat. I don’t mean that as an insult. I mean, he’s very rule-obsessed, and according to the book. completely independent. Of which he may be one criminal and one non-criminal.
That said, I disagree with this idea that Merrick Garland is this sort of magical figure hovering over politics. nominees for the Attorney General.
As a practical matter, it is now difficult for Merrick Garland to say: To give my current boss a pass, I might be challenging Donald Trump, and I’m going to give a pass to Mike Pence, who’s stepped away from Donald Trump. ”
The facts may eventually back it up, but politically, it’s a really difficult outcome for Merrick Garland to stand up for and support.
wolf: I was reading a New York Times op-ed the other day after the news that Alec Baldwin would be indicted. unwilling Manslaughter, basically don’t talk to the police.was Video linked there Attorneys talk about how federal law exists for everything. Possessing a lobster that is too small may result in a charge.
Honig: oh i know that yes.
wolf: Is this an example of that?do we find it too much confidential information Too many laws?
Honig: First of all, I disagree that you should never cooperate with the police. We believe that people with suspicions should be careful about what they say to the police, but sometimes cooperating is the best course of action.
Are there too many laws? Our confidential document system itself is a mess. Dozens of individuals, entities, and institutions have classification and declassification capabilities. Each classified document does not have a GPS tracker.
The law is a little confusing as well. There is no single law that regulates the handling of classified documents or confidential documents. We have a latticework of about six different laws that may apply to government documents, confidential information, or mishandling of confidential documents.
One consequence of all these policies is the need to re-evaluate how sensitive documents are stored and tracked. But as an attorney and former prosecutor, I believe we need a comprehensive and coherent law governing the criminal handling of these documents.
