In Charging Trump, Biden Lets Loose the Furies

The handing up of charges against President Trump lets loose the furies against the candidate who is leading the Republican field against President Biden. It’s a moment to remember that all the executive power of the United States is vested in the president. Moreover, the charges are reportedly over a species of peccadillo — retention of classified information — for which Mr. Biden has also come under scrutiny but is unlikely to be pursued.While the indictment is not yet public, one of Mr. Trump’s lawyers, James Trusty, took to CNN to disclose that the accusations include conspiracy, false statements, obstruction of justice, and illegally retaining classified documents under the Espionage Act. These charges include felonies carrying years in prison. There are reportedly seven counts, and Mr. Trump will appear in court at Miami on Tuesday. Claims he: “I’m an innocent man.”The burden to rebut that presumption of innocence lies solely on the prosecutors, but it is not too soon to speculate that their tasks will be made easier by, if the reports are accurate, Mr. Trump’s own behavior. It is difficult to understand the reported stonewalling and movements of memos and memorabilia between offices and storage rooms. If there is indeed audio of Mr. Trump discussing a classified document, that is the kind of evidence of which prosecutors dream. It demands no equivalence between what Mr. Trump is alleged to have done at Mar-a-Lago and the still-unclear contours of how Mr. Biden handled documents from his tenure as Vice President to wonder at the sight of criminal charges being brought for behavior that echoes, even if it does not replicate, that of the man at the White House. Documents were reportedly stashed next to Mr. Biden’s Corvette, among other locations. In a constitutional sense, Mr. Trump is correct to lay the responsibility for this prosecution on Mr. Biden. The special counsel and the attorney general ultimately report to him, as does the entire executive. Given that singular authority, it is inevitable — and understandable — that millions of Americans are going to see in this prosecution the taint of politics, an attempt to hobble the Republican frontrunner as the campaign moves into high gear. This is a serious issue. “The weaponization of federal law enforcement represents a mortal threat to a free society,” Governor DeSantis tweeted last night, though he has broken with the former president politically. “We have for years witnessed an uneven application of the law depending upon political affiliation.” That view is widely shared, and the issue will be hanging over the case throughout what could be a long prosecution.Particularly because the presidency’s power entails the doctrine of prosecutorial discretion; he cannot be forced to bring any case. The Department of Justice’s own guidance notes that the “prosecutor has wide latitude in determining when, whom, how, and even whether to prosecute for apparent violations of federal criminal law.” Prosecution is not recommended when “there exists an adequate non-criminal alternative.”We thought Alan Dershowitz made this point well in his piece in the Sun last night. He calls for waiting for the facts to emerge. For if this turns out to be a political case — one that wouldn’t have been levied had Mr. Trump not been running for president, one calculated to pre-empt the voters — the damage to our democracy done by the Justice Department would be worse than any charge it has handed up against the 45th president.

In Charging Trump, Biden Lets Loose the Furies

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