Biden reaps tit for tat in the militarization of justice

Biden reaps tit for tat in the militarization of justice

Biden reaps tit for tat in the militarization of justice

It is often said that justice should not only be Finishedbut must be seen. The appointment of a special advocate to investigate President Joel Biden’s alleged mishandling of classified information was not done to serve justice, but rather to satisfy the appearance of justice.

Everyone knows that President Biden will not be indicated for classified documents appearing in various places. First, a sitting president cannot constitutionally be indicted. The Department of Justice acknowledges this in its own rules and guidelines. Nor is it a case where others can be indicted. Finally, even if Biden were to be found guilty of criminal offenses, these would not rise to the level of felonies and misdemeanors, which are the criteria for impeachment.

So why did Attorney General Merrick Garland appoint a special advocate? The answer is clear: because he had previously appointed a special prosecutor to investigate Donald Trump. Since both men are likely to run against each other for the presidency, it is imperative that they are treated equally. Even though the facts differ somewhat, the bottom line is that the two seem to have mishandled the classified material.

At a time when Americans are deeply divided and agree on so little, there is one conclusion that seems to unite us all: the vast majority of Americans firmly believe that there are differences between what Biden and Trump would have. does. That’s the deal. But half the country seems to believe what Biden did was worse, while the other half thinks what Trump did was worse. Very few seem to believe that they too are guilty.

My own belief is that every President and Vice President has probably mishandled classified documents in one way or another. It is not due to malicious intent. No one has given or sold such material to our enemies. The mishandling was probably either reckless or intended to help a former civil servant write his memoirs. The case of former national security adviser Sandy Berger is an example. He stuffed improperly possessed material into his socks to facilitate the writing of his memoirs. The other recent examples – Hillary Clinton, Donald Trump and Joe Biden – seem like examples of negligence, laziness or convenience.

There should be full investigations into all of these security breaches, so that Congress can clarify and enforce the rules. It shouldn’t be the law that the president can declassify anything, without notifying anyone or making a record. But that seems to be the current rule, at least as far as potential criminal liability is concerned. But special prosecutors are not supposed to be appointed to conduct general investigations leading to changes in the law. This is the job of Congress. Special prosecutors are supposed to determine whether their target should be charged and prosecuted. We can be fairly certain that the end result of these investigations will be the decision not to prosecute either Biden or Trump.

Even if one or both special prosecutors were to recommend indictment — an unlikely prospect — Attorney General Garland would not take their advice. Only he knows that if even one of them were prosecuted, the divisions in this country would be greatly exacerbated. Thus, the end result will be that neither will be prosecuted.

In our current tit-for-tat world, these so-called violations cancel each other out. That may not be the case in law – one may be far more criminal than the other – but it certainly is in terms of realpolitik. And we live in a world where the law bends to politics.

So let the two special prosecutors spin their wheels. Let them dig deep. Perhaps they will find new evidence that distinguishes a case so clearly that the public would accept the prosecution of one without the other. But it is highly unlikely. Each side will continue to claim that the other is most at fault and should be prosecuted. These partisan claims of “justice for me, but not for you” will also cancel out in the court of public opinion.

The Democrats started it all with their gaudy overreaction to Trump’s failings, manifested in an unwarranted search and seizure. President Biden could not understand how a president could be so insensitive to security issues by putting sources and methods at risk. Now former President Trump is throwing that statement back at his rival.

This is what the militarization of justice has done. We are all poorer.

Alan M. Dershowitz is the Felix Frankfurter Professor Emeritus of Law at Harvard Law School and the most recent author of “The Case for Color Blind Equality in the Age of Identity Politics” and “The Case for Vaccine Mandates”, Hot Books ( 2021). Learn more about Alan Dershowitz’s reports – Here.

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