Below is my column in the Hill on how the two criminal investigations over classified documents could create an unprecedented constitutional conflict in 2024. We are likely to have two candidates with their own respective special counsels. One or both could be indicted. Either way, the election could protect the winner practically from prosecution either due to a self-pardon or an internal Justice Department rule. A vote for Biden or Trump could therefore literally prove to be a “get out of jail free” card.
Here is the column:
President Biden has declared that the criminal investigation into his possession of classified material ultimately will fizzle out because “there is no ‘there’ there.” To the contrary, there obviously is a great deal “there,” enough that a special counsel was appointed to investigate a classified documents trail from a D.C. office closet to Biden’s Delaware garage.
Although the president wants Americans to look down the road past images of classified documents next to his vintage Corvette, we may be heading into one of the most bizarre, unsettling moments in our constitutional history.
There is now a distinct possibility we will have not just two leading candidates campaigning for the presidency with their own respective special counsels in tow, but two candidates who could be indicted or close to indictment at the time of the election. That would present some novel political and constitutional questions.
A great deal already has been written about comparisons of the two cases and the obvious differences. The Justice Department’s Trump investigation includes not only accusations of mishandling classified material but also of false statements and obstruction; far more documents are involved, too. Yet enough similarities exist that Justice could weigh charges in both cases, even if only misdemeanors.
Moreover, the Biden allegations are serious in their own way. The documents in Donald Trump’s possession at Mar-a-Lago were largely housed in a locked storage room with security added at the FBI’s request; there was ’round-the-clock Secret Service protection and camera surveillance. That is not ideal — but it is better than a dozen documents scattered around a closet, garage and library in different states.
There is no question of gross mishandling in Biden’s case. There is only the question of who was responsible.
If the evidence shows that Joe Biden used any of these clearly marked documents to write his book or other projects, his insistence on “inadvertent” possession will take on a more sinister meaning as an effort to deceive the public and the FBI.
Both of these investigations could easily take a year or more.
The average time of a special counsel investigation of a president is over 900 days. These two investigations should take less than the average — but they are starting in 2023, with a presidential election in 2024. Trump has already announced, and Biden is expected to do so soon.
The one indictment scenario - One possible scenario that many Democrats are hoping for is that Biden is spared and Trump indicted. This option could be the most explosive with many in the country seeing a double standard.
The no indictment scenario - If the investigations of both Trump and Biden extend to August 2024, the department could follow its policy of not taking actions that might affect an election. Indicting a candidate clearly falls into that category.
The double indictment scenario - The Justice Department could also make fast work of both cases and indict both men. This option however could require a change in Justice Department policy.
This is where it gets wicked.
There has long been a debate over whether a sitting president can be indicted. While some of us believe there is no constitutional barrier to indicting a sitting president, the Justice Department has maintained that such an indictment is improper. Unless the Justice Department changed its view, it could indict Trump but might decline or delay indicting Biden. Moreover, given its policy, Justice could indicate it was holding final action on an indictment of Biden until after the election. A vote for Biden might then be seen as a way to effectively block any indictment.
Under any scenario (absent a decision to forego any charges), both candidates would face indictments or the possibility of indictment after the election. The vote literally could come down to who you want to see pardoned and who you would like to see jailed.
Even if the Justice Department elects not to indict Biden due to a lack of evidence, as opposed to a constitutional bar, it still would mean that Trump’s election could be used to negate any indictment over Mar-a-Lago. Many voters likely would view that as unequal treatment, and a self-pardon prospect could become a rallying point for many voters.
The right of a president to self-pardon is another subject of long-standing debate. Just as I believe a sitting president can be indicted, I also believe a president can pardon himself. Article II, Section 2, of the Constitution states the pardon power allows a president to “grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” There is no language limiting who can be pardoned other than that it can only extend to federal crimes. Others disagree. However, it could prove the ultimate factor for the single-issue voter: Who do you want pardoned or prosecuted?
A couple of other potential wrinkles exist.
Trump’s election could result in a pardon, even a prospective pardon for federal crimes. However, he cannot pardon himself for state crimes. For example, Georgia’s Fulton County district attorney, Fani Willis, is investigating Trump over the 2020 election; the case has some major evidentiary and legal issues to overcome in any trial — but Trump could well be indicted.
If elected, Trump could clear the boards of any and all federal crimes, but he would face a trial in Georgia during his second term.
Biden could have his own pardon surprise. If his son, Hunter, is eventually indicted, Biden could follow the lead of President Clinton, who pardoned his own half-brother. It would be another abuse of the pardon power for personal benefit. Clinton, however, waited until the final days of his second term to act; if Biden was looking for a reason not to run, he might pardon his son and then withdraw from a reelection bid.
This may all sound like a constitutional version of the popular movie, “Everything Everywhere All at Once,” in which one finds oneself in some bizarre parallel universe.
In the movie, protagonist Alpha Waymond explains that “every rejection, every disappointment has led you here to this moment” — and that may be the case with the American electorate. Our duopoly of power has led us to a series of compromises that have brought us to this moment, and we may have to decide which of two candidates we most want to pardoned or prosecuted.