February 9, 2024
Permission to republish original opeds and cartoons granted.
Will the American people< determine if Biden and Trump run for president—or the permanent state? Special< Counsel Hur questions Biden’s ‘poor memory’ while Special Counsel Smith tries< to lock up Trump
By Robert Romano
“[U]nder established< Department principles, we decline criminal charges against Mr. Biden relating< to the classified Afghanistan documents and his classified notebooks… We would< do so even if we were not bound by the Office of Legal Counsel's legal conclusion< that a sitting president may not be charged with federal crimes.”
That was Special Counsel< Robert Hur concluding in his Feb. 5, 2024 report< on President Joe Biden’s retention of classified materials from his time as a< Senator and then Vice President and reminding the American people that the< Justice Department has no constitutional authority to prosecute a sitting< president who is the unitary executive under Article II and cannot prosecute< himself.
Biden not being prosecuted< was always going to be the case, no matter what the outcome of< Hur’s investigation into Biden was.
As with all other sitting< presidents, the Justice Department’s Office of Legal Counsel has repeatedly< concluded in both 2000 and 1973 they cannot be prosecuted, with the< 2000 memo stating “We believe that the conclusion reached by the Department in< 1973 still represents the best interpretation of the Constitution.”
So why have special< counsels? Politics.
In this case, the role of< Special Counsel Hur was to simultaneously provide a sort of assurance if not< immunity to Biden that he would neither be prosecuted as president nor as a< former president should he step down as president this year or simply not seek< reelection.
To help that along, Hur< also has caused a political firestorm by disclosing his views on Biden’s< mental capacity to competently stand trial by stating “We have also considered< that, at trial, Mr. Eiden would likely present himself to a jury, as he did< during our interview of him, as a sympathetic, well-meaning, elderly man with a< poor memory.”
This has already,< predictably, led to questions mostly from Republicans supporting former< President Donald Trump who is running against Biden in the 2024 election, that< if Biden is not mentally competent to stand trial, how can he continue to< competently serve as president?
And it is leading to calls< for Biden to step aside for the good if not the country then the Democratic< Party’s 2024 prospects. After the Special Counsel report dropped on Feb. 8, at< a press conference one reporter asked Biden, "How bad is your memory and< can you continue as president?"
Biden, visibly angry at< the line of questioning and these provisions of the Special Counsel report,< responded, "My memory is so bad I let you speak."
When pressed again about< his competence, Biden snapped back, declaring, “I am well-meaning. And I’m an< elderly man. And I know what the hell I’m doing. I’ve been president — I put< this country back on its feet. I don’t need his recommendation.”
Biden’s annoyance is< understandable: The level of political interference by the Special Counsel and< the Justice Department more broadly the past decade has been unprecedented, if< not ultimately predictable.
In fact, the last four< prospective and actual presidents have all had classified documents cases< brought against them including Joe Biden, Donald Trump, Hillary Clinton and< David Petraeus.
In 2011, the Guardian ran< a headline about former CIA Director and retired Gen. David Petraeus, “Petraeus in profile: the man who< could be president,” that speculated he might run for President in 2016 as a< Republican candidate.
But it was not to be. A< year later, after the terrorist attacks at the U.S. consulate in Benghazi,< Libya on Sept. 11, 2012, it was revealed that Petraeus had an< extramarital affair with his biographer beginning in 2011 who exchanged< messages in a draft folder using Petraeus’ secure email account. When< discovered, Petraeus resigned as CIA Director in Nov. 2012 and later pled< guilty to a misdemeanor charge of mishandling classified information, ending< Petraeus’ career before it ever began.
In 2014, it was discovered< that Hillary Clinton was using her private< email server at her home to route classified emails to her smartphone as a< matter of convenience, leading to Congressional and State Department and< eventually FBI inquiries over her own handling of classified information,< leading to former FBI Director James Comey to< opt not to pursue any charges of Clinton in July 2016.
In Oct. 2016, Comey then< reopened the case right before the election in light of additional emails< discovered on former U.S. Rep. Anthony Weiner’s (D-N.Y.) computer from his< ex-wife, Huma Abedin, who was Clinton’s campaign vice chair. This was reported< publicly, and might have partially tipped the 2016 election to former President< Donald Trump.
The same year, the FBI< opened an investigation of then candidate Trump, on fake charges that he was a< Russian agent. It turns out, Clinton, who was running against Trump, and her< campaign had hired Perkins Coie, Fusion GPS and ultimately former British spy< Christopher Steele to produce the allegations, based on< false sources, that Trump and his campaign had conspired with Moscow to< hack the DNC and put its emails onto Wikileaks.
The information was< published before the election a couple of times, but it wasn’t until after the< election that the top secret investigation went into full throttle and was< carried through the presidential transition and into the Trump administration.< Within weeks, Trump’s National Security Advisor Michael Flynn had been removed< after it was revealed he had communicated with the Russian ambassador Sergei< Kisylak during the transition in a bid to deescalate tensions< between Moscow and Washington and prevent war (one we’re< presently on the brink of, by the way). By March 2017, Trump’s Attorney General< Jeff Sessions had recused himself, Trump fired Comey and then Special Counsel< Robert Mueller was appointed to carry on the investigation.
Mueller found there was no Trump campaign< conspiracy with Russia to hack the DNC and give the emails to Wikileaks.< According to Mueller’s final report in 2019 to the Attorney< General, “the evidence was not sufficient to charge that any member of the< Trump Campaign conspired or coordinated with representatives of the Russian< government to interfere in the 2016 election.”
The report added, “In< particular, the Office did not find evidence likely to prove beyond a< reasonable doubt that Campaign officials such as Paul Manafort, George< Papadopoulos, and Carter Page acted as agents of the Russian government — or at< its direction, control or request — during the relevant time period.”
Like the Biden special< counsel, Mueller also similarly found that he< could not prosecute a sitting president: “The Office of Legal Counsel (OLC)< has issued an opinion finding that “the indictment or criminal prosecution of a< sitting President would impermissibly undermine the capacity of the executive< branch to perform its constitutionally assigned functions” in violation of “the< constitutional separation of powers.”1 Given the role of the Special Counsel as< an attorney in the Department of Justice and the framework of the Special< Counsel regulations, see 28 U.S.C. § 515; 28 C.F.R. § 600.7(a), this Office accepted< OLC’s legal conclusion for the purpose of exercising prosecutorial< jurisdiction. And apart from OLC’s constitutional view, we recognized that a< federal criminal accusation against a sitting President would place burdens on< the President’s capacity to govern and potentially preempt constitutional< processes for addressing presidential misconduct.”
And yet it also found that< it had all the power it needed to conduct such a criminal investigation: “while< the OLC opinion concludes that a sitting President may not be prosecuted, it< recognizes that a criminal investigation during the President’s term is< permissible” because “The OLC opinion also recognizes that a President does not< have immunity after he leaves office.”
This is the Justice< Department claiming absolute legal dominion over presidential candidates,< sitting presidents and former presidents — a proverbial gun to the President’s< head. Step out of line, and they’re coming for you.
Even the most recent< appointment of a Special Counsel Jack Smith by Attorney General Merrick Garland on< Nov. 18, 2022 noted that politics itself was a paramount concern of< the Justice Department, with Trump’s Nov. 15, 2022 announcement he was running< for president in 2024 election being used as the rationale for the heightened< criminal investigation over classified documents and his legal challenges of< the 2020 election.
Garland stated, “Based on< recent developments, including the former President’s announcement that he is a< candidate for President in the next election, and the sitting President’s< stated intention to be a candidate as well, I have concluded that it is in the< public interest to appoint a Special Counsel.”
In order for a special< counsel to be appointed, according to 28 C.F.R. 600.1, the Attorney General must determine< “that [a] criminal investigation of a person or matter is warranted and…< investigation or prosecution of that person or matter by a United States< Attorney’s Office or litigating Division of the Department of Justice would< present a conflict of interest for the Department or other extraordinary< circumstances…”
Here, Garland admitted< that the potential “conflict of interest” was that Trump and Biden are running< against each other in the election, and so there must be more Justice< Department investigations.
This amounts to the< permanent, administrative state playing a pivotal role in choosing the< president for more than a decade now. Why should the American people tolerate< this?
Although we haven’t gotten< there yet, it is entirely possible that these Justice Department and judicial< proceedings might be what ultimately determines who even appears on the ballot< in 2024. Biden and Trump are running against one another for the moment — but< will the permanent state let them keep running? The Justice Department and< runaway special counsels have become mutually assured destruction. Who’s in< charge here?
Robert Romano is the Vice< President of Public Policy at Americans for Limited Government.