This too shall pass.

January 13, 2023

          Oh, boy! Missteps by Joe Biden and Merrick Garland have combined to make a federal case out of a molehill. But in the hands of a salivating GOP and a press corps vibrating with equal parts glee and ambition, that molehill will be a thorn in Biden’s side for the remainder of his term as president. For those seeking to preserve their sanity during the coming food fight on Capitol Hill, it is helpful to focus on what matters—and ignore what doesn’t. If we do that, Americans still have reason to hope that justice will prevail in the end.

          What matters is that special counsel Jack Smith indict Trump on all grounds supported by the evidence. Period. No exceptions demanding “airtight cases” for former presidents or worries about “making a martyr” of Trump or fears of holdout jurors. Someone must defend the Constitution. At this moment, that someone is special counsel Jack Smith. Nothing that has happened with Biden’s retention of classified documents changes a single fact about Trump’s crimes or affects the prosecutorial judgment about indicting Trump. That is what matters. The rest is political melodrama.

          But political melodrama matters in the realm of politics. In that realm, Biden has inflicted self-injury because of missteps and delays in reporting the circumstances of his innocent retention of documents. And Garland has exacerbated that injury by appointing a special counsel to investigate Biden—a decision plainly influenced by political pressure from the GOP. Put simply, it is a mess.

          Fortunately, it is a mess at the beginning of a two-year election cycle and a four-hour news cycle. In other words, this too shall pass. It will be quickly overtaken by real scandals that present a serious threat of criminal liability to political leaders. Based on the facts known today, none of those circumstances apply to Joe Biden. And the first indictment of Trump will overtake and overwhelm every aspect of Biden’s stumble.

          Here is my quick “cheat sheet” that attempts to summarize the important facts about Biden’s discovery of documents.

Biden is unlikely to face criminal exposure.

          Biden’s retention of documents appears to be inadvertent and his cooperation negates willfulness and obstruction of justice. Per Joyce Vance’s commentary on Twitter:

For Biden to have criminal issues, there would have to be evidence of "willfulness," roughly, knowledge & intent to mishandle documents. One provision of the Espionage Act appears to criminalize "gross negligence" in handling docs, but SCOTUS precedent requires more.

Biden ruined his early exemplary response by delaying disclosures to the public and follow-up searches at other locations.

          Biden’s lawyers immediately notified the National Archives upon discovery of the documents and turned them over the next day. Good. But he did not tell the American people of the discovery even though Trump’s deliberate retention of documents was a major story. Bad. And the amateurish second discovery of documents in a garage housing Biden’s Corvette hurt his credibility and gave pundits free rein to raise “unanswered questions” about Biden’s response. According to former prosecutor Andrew Weissmann, Merrick Garland’s announcement of a special counsel “raises issues”:

Why did Biden counsel do the searches of his home/garage, and not the FBI/DOJ? Or at least invite them to participate, or consent to the FBI/DOJ doing the searches? And why the search delays and no prompt public disclosure?

The appointment of a special counsel to investigate Biden was inappropriate.

          Appointment of a special counsel is authorized when a “criminal investigation is warranted” and prosecution of a person would present (a) a conflict of interest for the DOJ or (b) create other extraordinary circumstances. See 28 CFR § 600.1 - Grounds for appointing a Special Counsel.

          In his press conference announcing the appointment, Merrick Garland cited “extraordinary circumstances” to justify the appointment of the special counsel. See MSN, Garland Says ‘Extraordinary Circumstances’ Warrant a Biden Special Counsel. But such extraordinary circumstances must exist in addition to grounds “warranting a criminal investigation.” Here, the only evidence suggests an inadvertent retention of documents. In other words, Merrick Garland appears to have buckled to political pressure.

          Even the pace of the appointment of a special counsel suggests disparate treatment between Trump and Biden. Garland delayed for nearly in year in appointing a special counsel to investigate Trump’s deliberate removal and stonewalling the return of national defense secrets, yet he appointed a special counsel to investigate Biden after two months of full cooperation from Biden.        

The appointment of a special counsel eases the political backlash of a decision not to prosecute Biden

          Despite the fact that Garland caved to political pressure, that may ease the political backlash of an indictment of Trump and exoneration of Biden. Per David Frum of The Atlantic,

A special counsel can exonerate a president more credibly than his own attorney general can. Biden surely made an innocent, harmless mistake. But mistake it was, and if Trump is to face consequences for a much graver offense, Biden can’t shrug off a superficially similar one.

Reader comment regarding classified documents.

          As a reader noted in the Comment section to yesterday’s newsletter, the system for controlling the dissemination and return of classified documents is broken. If national security agencies go to the bother of classifying documents to prevent their unauthorized retention and disclosure, there ought to be a system in place for ensuring their return from recipients who no longer need the documents to perform their duties. If the CIA, NSA, Homeland Security, et al need a model for keeping track of classified materials that have not been returned, they would do well to visit a local library and ask how they keep track of library books lent to members of the public.

* * * * *

          So, that’s my take for tonight on Biden’s document contretemps. I am going to do my best to give this story the attention it deserves in the future—i.e., very little.

McCarthy announces Committee Chairs—heavy representation from insurrectionists.

          Kevin McCarthy announced the chairs of seventeen major House committees today. Eleven of the seventeen chairpersons voted against the electoral slates of Arizona and Pennsylvania in the 2020 presidential election. Oh, and all seventeen are white, and all but three are men. In fairness, that is an accurate representation of the face of the Republican Party today.

George Santos is toast—and so are some major GOP donors.

          The New York Times has published an investigative piece on funding received by George Santos’s campaign in 2022. See NYTimes, The Mysterious Campaign Fund That Raised Big Money for George Santos. The details are complicated, but the upshot is that an unregistered campaign PAC (Redstone Strategies) reportedly raised $800,000 to help elect George Santos.

Redstone did not register with the Federal Election Commission or file reports regarding donors or expenditures. Moreover, Redstone shared an office address with an investment firm sued by the SEC for operating as a Ponzi scheme—a firm that employed George Santos shortly before he decided to run for a seat in the House.

          All of the associations between Mr. Santos and Ponzi schemes, unregistered PACs, and unexplained donations could be unlikely coincidences. Or the simplest explanation could be true: Santos funded his campaign from a Ponzi scheme that defrauded investors of $17 million. If that is what happened, there is a special election on the horizon in NY3. It can’t happen soon enough. 

Concluding Thoughts.

          A strategy of many animals when threatened is to make themselves appear larger by ostentatious displays. So, too, with the Republican Party. In order to make itself appear larger in the political realm, Republicans resort to all manner of deceit, intimidation, and chest-thumping. In truth, the MAGA hardcore center of the GOP is a minority political faction in the US. A reader (Larry Kurzweil) who publishes a fascinating data-centric newsletter under the name of No Jive Joe (“Just the facts, Ma’am.”) wrote the following in his latest newsletter:

I have been searching for better part of a year+ to determine a ‘reliable' number that represents the true size of the MAGA Republican population in the US. Finally have it.

MAGA Republicans currently account for 10% of all US Adults. They account for 35% of all Republicans. Most Republicans do not identify as “MAGA supporters.” If you are Republican and above 65 years old, you are more likely than not to be a MAGA supporter:  however, all other age groups are by far non MAGA leaning.

          Kurzweil links to recent polling to support the above analysis. You can sign up for the No Jive Joe newsletter here.

          Here’s my point: Given the recent deluge of coverage of the new House GOP majority, it is easy to fall victim to a cognitive bias that makes the MAGA faction appear larger than it actually is. In fact, there are way more of us than there are of them. But for gerrymandering and voter suppression, Democrats would hold a natural, permanent majority in the House.

          We can (and will) eventually overcome as the Republican base shrinks and the party’s ideology repels Americans who are offended by its extremist agenda. Indeed, the 2022 election should give us hope that we are getting close to the day when we break the stranglehold of gerrymandering. The chaos in the House over the last week is a manifestation of the GOP’s growing weakness.

          As always, it is not enough to count on Republicans to defeat themselves. But as we do the hard work of redeeming democracy for our generation (and the next), it helps to have a clear picture of the challenge we face. The GOP is a formidable foe but is not as large, organized, or effective as they would have us believe. At the same time, Democrats are more unified, passionate, and dedicated than we like to admit!

          I will be in touch with a short newsletter on Saturday. Otherwise, get some rest and take some well-deserved time off over the weekend!

          Talk to you tomorrow!