THERE'S A REASON NO ONE MINDS A BIDEN INVESTIGATION:

How will the Department of Justice decide whether charges are merited against the former and current president for mishandling of government documents? The DOJ will determine whether there is sufficient evidence satisfying each element of the relevant federal criminal statutes -- and how like cases have been treated by the Department in the past. That is, they will look to DOJ charging precedent, including when charges were and were not brought.

Analysis of these precedents was previously examined by a team of Just Security legal experts, including the co-authors, with regard to the facts known about the former president. We concluded that prosecuting Donald Trump would not only be called for by that precedent, but compelled by it. In fact, many who engaged in significantly less egregious conduct have been subject to criminal prosecution. (Our model prosecution memo can be found here).

In light of the Biden government documents contretemps, it is also useful to reexamine DOJ precedent to see how the facts currently known about the Biden documents stack up. Because of its apparent factual and legal similarities, the DOJ's prosecution decision regarding former Attorney General Alberto Gonzales is a precedent particularly worthy of comparison.

The Justice Department decision to decline prosecution of Gonzales points to a similar outcome for President Joe Biden.[1] Indeed, certain facts in the Gonzales case were more egregious and incriminating, including evidence of his specific knowledge and personal handling of highly classified material outside of an appropriate classified facility.

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