Biden and Trump Documents Put America in front of Most Turbulent Moment in Its History

President Joe Biden has announced that the ongoing investigation into his possession of classified material will ultimately lead nowhere as he “has no such material.”* However, there is enough classified material to warrant a special counsel’s investigation into the trail of classified documents leading from a Washington office to Biden’s garage in Delaware.

There may be a surprise pardon awaiting Biden. If his son, Hunter, is ultimately convicted, Biden could follow the example of President Bill Clinton who pardoned his half-brother. With this in mind, Jonathan Turley, professor of public interest law at George Washington University, wrote in The Hill that despite the president’s desire to distract the American people from photos of the classified documents, “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,” he added.

Between the Issues of Biden and Trump

Many writers have dealt with the similarities between the Biden and Trump cases. The investigation into Trump, which is being conducted by the Department of Justice, includes not only accusations of misuse of classified materials, but also accusations that he made false statements and obstructed justice. The list of charges against Trump also involves a much larger number of documents. However, there are enough similarities that the Justice Department can consider bringing charges in the two cases, even if they are for misdemeanor offenses.

The accusations against Biden are serious in and of themselves. The documents in Trump’s possession at Mar-a-Lago were kept inside a closed storage room, and security measures were added at the behest of the FBI by installing surveillance cameras. This is not an ideal situation, but it is better than dozens of documents scattered across a closet, garage and office in different states.

There is no question of gross misuse in the Biden case. The question is who is responsible. If the evidence shows that Biden used any of these clearly marked documents to write a book or for other projects, his insistence that he had “accidental possession” will look worse as people will see it as an effort to deceive the public and the FBI.

Investigations in both cases could take a year or more. The special counsel spends an average of more than 900 days to investigate a president. The two investigations should take less than that, but they will start in 2023 with the 2024 presidential election looming on the horizon. Trump has already announced his intention to run, and Biden is expected to announce his intention soon as well.

Democrats are pinning their hopes on a possible one-conviction scenario in which Biden is acquitted and Trump is convicted. This may be the most disturbing option, as many will see a double standard in how the two cases are handled.

There is also a possible no-conviction scenario. If investigations into Trump and Biden extend into August 2023, the Department of Justice is likely to stick to a policy whereby it refrains from taking any actions that could affect a presidential election. Conviction of a presidential candidate would fall under this policy.

A double-conviction scenario might also take place. It is possible that the Justice Department will also rush into the two cases and convict both men, but this option would require the Justice Department to change its policy.

There has been a long-standing debate about whether a sitting president can be convicted. Although some of us believe there is no constitutional impediment to convicting a president, the Justice Department has said such a conviction is inappropriate. Unless the Justice Department changes its view, it could try and convict Trump and refuse or delay trying and convicting Biden. Moreover, given the Justice Department’s policy, it might announce that it has delayed any final decision regarding Biden until after the 2024 election, and a vote for Biden in 2024 might be considered a way of warding off conviction.

Under any scenario, both candidates could face charges and conviction soon after the election, and the 2024 vote could be reduced to choosing between the candidate you want to see pardoned and the candidate you want to go to prison..

Even if the Department of Justice decides not to charge Biden for lack of evidence, if Trump is elected, it could nullify any conviction for possession of documents at Mar-a-Lago, and many voters would see this as unfair.

The president’s right to pardon himself is also a matter of debate. Just as I do not believe that the current president can be convicted, I also believe that the president can pardon himself under Section 2 of Article II of the Constitution, which states that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” There is no language in the Constitution that restricts who can be pardoned.

Other Problems

There are two other problems. Trump’s election could lead to his pardon, but he cannot pardon himself for crimes against the state. For example, in Georgia, Fulton County District Attorney Fani Willis is investigating Trump with regard to the 2020 election. There are serious evidentiary and legal issues that would face rebuttal at trial, but it is a case in which Trump could easily be convicted.

If Trump is elected, he could erase any federal convictions, but he would have to appear before the court in Georgia during his second term.

There may be a surprise pardon awaiting Biden. If his son, Hunter, is ultimately convicted, Biden could follow the example of President Clinton, who pardoned his half-brother. If that were to happen, it would be yet another abuse of the pardon power for personal gain. But Clinton waited until the last days of his second term to act. And if Biden was looking for a reason not to run, he might pardon his son and then withdraw from running for a second term.

*Editor’s note: Although accurately translated, this remark could not be independently verified.