Opinion | Trump and Biden Are Both Under Investigation. Will Anything Come of It? - The New York Times

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For two months now, a special counsel appointed by Attorney General Merrick Garland has been investigating former President Trump in part for retaining hundreds of classified documents at his private Florida residence long after he left the White House. So when it came to light last week that classified documents dating to the Obama administration had been found in President Biden’s home and former private office, many observers commented that Garland “had no choice” but to appoint a special counsel to investigate him, too.

Fair is fair, and in this instance, fair is also fraught. While the cases differ significantly given what we know so far, their confluence raises the prospect that the 2024 election will be a face-off between two men who have both been president and are both under investigation by a federal prosecutor.

How did special counsel investigations become such a prominent feature of American politics, what purpose do they serve, and where might these two lead? Here’s what people are saying.

The long and troubled history of special counsels

How should a government investigate potential crimes committed by its own executives? The question has bedeviled Washington since at least 1875, when Ulysses S. Grant appointed the first special prosecutor to investigate the theft of whiskey taxes by federal officials — only to fire him when the evidence implicated Grant’s personal secretary. The scandal foreshadowed Richard Nixon’s dismissal in 1973 of the special prosecutor in charge of the Watergate probe, an incident that came to be known as the Saturday Night Massacre.

In the aftermath of Watergate, Congress sought to resolve the conflict of interest inherent to such arrangements by passing a law that allowed for expressly “independent” counsels who could not be so easily fired by the president or his deputies. They were appointed by and reported to a panel of federal judges and operated free of any limits from the Justice Department on the budget, scope or duration of their investigations.

But after independent counsel investigations into the Iran-contra affair during Ronald Reagan’s presidency and the Whitewater and Monica Lewinsky scandals that troubled Bill Clinton, lawmakers on both sides of the aisle came to feel that the independent counsel law promoted prosecutorial overreach. They allowed it to lapse in 1999, leaving the Justice Department to create the special counsel system we have today.

Over the course of these institutional changes, special counsel investigations became increasingly common: Every president since Nixon except Barack Obama has had to deal with one.

Whether they are fulfilling their promise of uncovering and rooting out executive corruption, though, is open to question. While special counsels enjoy more autonomy than U.S. attorneys and some protections against dismissal, they still serve at the discretion of the attorney general, and by extension the president, who, according to Justice Department policy, cannot be charged with a crime while in office. What’s more, the results of a special counsel investigation are not required to be released to the public nor even submitted to Congress.

As Peter Baker of The Times wrote in November, “The history of independent prosecutors over the past half century is a torturous one in which the nation has never found a durable, nonpolitical means for holding rogue presidents or other high officials to account.”

Inside the two cases

As Charlie Savage of The Times explains, both cases involve violations of the Presidential Records Act, which requires White House records to be turned over to the National Archives and Records Administration when a president leaves office. Under the Espionage Act, anyone who without authorization willfully retains a document relating to national defense and fails to return it on demand, or who through “gross negligence” allows such a document to be misplaced, lost or destroyed, is potentially guilty of a federal crime.

But aside from that basic similarity, the cases are shaping up quite differently:

• In Trump’s case, the National Archives asked Trump to return missing files — ultimately more than 300 — in 2021. Trump delayed responding, then failed to comply fully with a subpoena while falsely saying he had, prompting a court-authorized F.B.I. search in August to retrieve the documents.

• In Biden’s case, the White House has said that Biden’s lawyers discovered one batch of documents on Nov. 2 at the office of his think tank, a second batch on Dec. 20 at his Delaware home and six additional pages in January at the same residence — and immediately alerted the National Archives, which had not known the documents existed.

• Trump appears to have destroyed and damaged official documents; there is no allegation that Biden did so.

That is not to say Biden has been cleared of wrongdoing. There are still unanswered questions about why and how the documents ended up where they did, the import of their contents and whether there are more. Even if the answers are innocuous, Walter Shaub, the head of the Office of Government Ethics under President Obama, has said that Biden’s actions still reflect “an inexcusable neglect of the most basic security protocols.” The White House has also been criticized for waiting until after the midterm elections to publicly disclose the discovery of the first batch of documents and for claiming on Jan. 12 that the search was “clearly complete,” only to issue a statement on Jan. 14 that more documents had been discovered.

What now?

Barring any more revelations of wrongdoing on Biden’s part, some analysts believe the difference between the two cases will prove obvious to the American people. “This is why the special counsel may well end up helping Biden,” writes Michael Tomasky, the editor of The New Republic. “If the Biden documents got there by accident, Robert Hur” — the special counsel in the Biden case — “will affirm that, and most Americans will believe it.”

But the more common takeaway for pundits across the ideological spectrum is that it will now be politically unworkable for the Justice Department to charge either man with a crime, because the differences between their cases will elude casual observers. As The Wall Street Journal’s editorial board put it, “half the country would conclude the sitting president is prosecuting his chief political competitor for an offense that he also committed.”

There are those, like Henry Olsen of The Washington Post, who believe it would be appropriate for the special counsels to pass the buck to the public. “Looking to the law to settle what is essentially a political dispute might be sound jurisprudence, but it would be detrimental to our democracy,” he writes. “The special prosecutors should present their cases to voters, and they can decide these men’s fates.”

But there is also a risk that such a deferral would call the utility and vaunted independence of special counsels into question. There have now been four special counsel investigations in less than six years. First was the Mueller investigation, which dominated headlines for two years but ultimately proved less consequential than Democrats hoped and Republicans feared. Then, in 2019, Trump’s attorney general appointed John Durham to lead a kind of meta-investigation of the Mueller investigation that is still ongoing, albeit with little to show for it but two acquittals.

In 2021, Neil Kinkopf, a law professor at Georgia State University College of Law, argued that the second investigation revealed a profound need for structural reforms to the special counsel system. He and others have proposed several that would restore its independence while guarding against runaway prosecutors, including mandating reports to Congress and diverting some of the attorney general’s power to appoint and remove special counsels to a panel of federal judges or a new division within the Department of Justice.

Kinkopf’s concern at the time was that the public had been given reason to believe that special counsel investigations “can be used as a political weapon.” Should the two new special investigations into Trump and Biden also come to naught, though, the public may also start to see them as political theater.

Do you have a point of view we missed? Email us at debatable@nytimes.com. Please note your name, age and location in your response, which may be included in the next newsletter.

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READ MORE

“The Origins of Joe Biden’s Document Mess” [The New Yorker]

“Biden’s Classified Documents Should Have No Impact on Trump’s Legal Jeopardy” [The Atlantic]

“Don’t Minimize Biden’s Classified Information Mess” [The Atlantic]

“I Experienced Jack Smith’s Zeal Firsthand. Will Trump Get the Same Treatment?” [The Intercept]

“Q. and A.: Margaret Sullivan on the Coverage of Biden’s Documents” [The Columbia Journalism Review]

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