What’s good for the goose is good for the gander. It’s the latest game in Washington, being played out every time a document is found in a garage or a room near a garage in Wilmington, Delaware, as the relics of 40 years in public life are searched for random classified documents. And so the game goes.
They both have special counsels.
They both have had their garages searched.
One is cooperating. One not so much.
The White House is rightly frustrated that it’s getting no credit for all the differences between the two cases, and there are real differences, but that only underscores the extent to which the dispute is about politics.
When it comes to the law, the differences are real. The difference between taking documents and keeping them intentionally and doing so sloppily, if that’s what it turns out to be, is the difference between acting intentionally and acting accidentally, between what is lawful and what is unlawful. The criminal law is built on this difference, on mens rea, on state of mind, and guilt depends on it.
But that’s the law.
On the political level, this is playing out as what is good for the goose is good for the gander, and that’s partly because the White House played politics with the issue almost as much as Trump has.
Had they come out, when the first document was found, and ordered a full-scale housecleaning, maybe some of the damage of the dribs and drabs disclosure could have been avoided. On the other hand, it might have taken the sting out of the Mar-a-Lago search that contributed to the Republicans’ disappointing midterm performance, so maybe the White House played it right politically and are paying the price for it now. Biden’s attorneys immediately disclosed the documents they discovered to the National Archives and the Justice Department, but they did not disclose them publicly in the days leading up to the midterm election.
Of course it shouldn’t matter. Whether Trump violated the Espionage Act or related provisions shouldn’t turn on whether Biden was sloppy as a senator or vice president, or whether his aides played politics in disclosing their discovery of classified documents. But that assumes a pristine approach to law that is simply not realistic.
Politics shapes the administration of justice, whether we like to admit it or not, even with the most independent special counsels in place, and this may be one case where the public attitude toward the document drama shapes the decisions that are made at the highest levels. Whether keeping documents was ever enough to indict a former president, it somehow seems a less serious crime when the sitting president can be accused of something that looks — on the face of it at least — similar enough to generate a passable political game of goose for the gander, a good enough game at least to make an indictment more difficult to justify.
In the end, the likely winner in the goose for the gander game is, of course, Donald J. Trump. Because while it shouldn’t matter, the discovery of classified documents in Biden’s possession makes it more difficult, optically, politically, if not legally, to make the case for criminal indictment of Trump, notwithstanding the differences between the two cases.
