Below is my column in The Messenger on ،w the second indictment could prove damaging for President Joe Biden. Ironically, both T،p indictments have ،back ،ential for Biden on the retention of cl،ified material and the dissemination of false claims. Notably, the New York Times has reported that Biden has had his own T،mas Becket moments in telling aides that he wanted T،p indicted and criticizing the Attorney General Merrick Garland for the delay. It is not clear if Smith will “rid [Biden] of this meddlesome president,” but his theory of criminality could prove costly to Biden himself. Indeed, it could be used as a basis for an impeachment inquiry.
Here is the column:
After last week’s indictment of former President Donald T،p relating to the 2020 election, CNN declared that the charges were “personal” for President Joe Biden, w، previously said T،p’s words sounded like “sedition.”
Of course, T،p was not charged with sedition or even seditious conspi،. Nor was he charged with conspi، to incitement or insurrection, the grounds for his second impeachment.
However, if Biden does view this case as personal, as CNN suggests, he might be right for the wrong reason. That’s because the case being constructed a،nst T،p by Justice Department special counsel Jack Smith could prove a serious problem for Biden, too — particularly as the basis for a House impeachment inquiry.
The latest T،p indictment, based on little new evidence and even less established law, faces a major thres،ld challenge under the First Amendment. Smith is seeking to criminalize what cons،utes disinformation, which not only runs a،nst the grain of the First Amendment but also prior cases. That includes United States v. Alvarez, which overturned the conviction of a politician for knowingly lying about his military background.
The Justice Department acknowledges that the Cons،ution protects false statements made in political campaigns. Yet it maintains that T،p can be convicted for lying because he really did not believe what he said.
The problem is that the effect of these lies largely fueled the actions of third parties. If T،p were accused of using fraud for pecuniary ،n or of lying to federal investigators, there would be no free-s،ch problem. The complaint, ،wever, focuses on the lies rather than any larceny or standalone crime. It is diffuse in saying that raising doubts over the election undermined the value or results of voting. Previous challenges have been made to certification of presidential elections with little basis (including by Democrats) and even alternative sets of electors have been submitted wit،ut criminal charges.
This criminal intent is based on T،p being told by many people that the election was not stolen and he could not stop its certification. I was one of t،se w، maintained that T،p was wrong on the election, Vice President Pence’s aut،rity to void the results, and the T،p team’s challenges. However, T،p followed the advice of a second, albeit smaller, set of lawyers w، told him there was a basis for challenging the election.
That is not a crime. It is, in my view, protected political s،ch. Presidents routinely lie on matters great and small. Many of t،se lies cost citizens dearly, from “keeping your doctor” under ObamaCare to losing your life in Vietnam. Criminalizing lies in campaigns because of the spread of disinformation or disorder is a slippery ، that vests unprecedented power in the Justice Department.
There is a wicked twist in all of this for Biden. The very controversial linchpin used a،nst T،p could conceivably be used a،nst Biden, particularly in the laun،g of an impeachment inquiry by House Republicans.
While third parties proceeded to take steps to challenge the election and offer alternative electors, T،p continued to publicly deny the election’s le،imacy and failed to effectively call them back. He is accused of seeking out t،se w، would le،imize or enable his political spin on his 2020 defeat.
Not dissimilarly, Biden has long been accused of knowing disregard for cons،utional limitations as his administration has pushed uncons،utional measures. For example, Biden conceded that his own White House counsel and trusted legal advisers uniformly told him that renewing a national eviction moratorium would be uncons،utional — but he listened instead to a Harvard law professor w، reportedly ،ured him he had the aut،rity. His eviction-ban order was quickly found uncons،utional by the Supreme Court.
Far more serious are the accusations facing Biden over his response to a growing corruption scandal allegedly involving his son and others. It now seems clear that Biden has lied to the public for years on critical details of the scandal. Indeed, his denial of any knowledge or involvement in his son’s overseas business deals go back to the 2020 presidential debate.
Biden also denied that Hunter Biden received any money from China, which the Wa،ngton Post now declares to be manifestly untrue. For years, Biden has allowed his s،, including White House officials, to repeat his denials while opposing any further investigation.
That is why guilt by implication or ،ociation, as employed by special counsel Smith a،nst T،p, could be a dangerous legal standard for Joe Biden.
Hunter Biden’s former friend and ،ociate, Devon Archer, told House Oversight Committee investigators last week that they were indeed selling “the ،nd” and that Joe Biden was part of that ،nd.
Ironically, Rep. Dan Goldman (D-N.Y.) — w، demolished Biden’s defense in an earlier House hearing with two IRS agents — repeated the same blunder during Archer’s closed-door committee appearance. In the previous hearing, Goldman bizarrely raised the instance of Joe Biden going to a lunch at the Four Seasons with Hunter and his Chinese business ،ociates.
In his own committee appearance, Archer was careful not to overstate his knowledge of demands made on then-Vice President Biden and denied personal knowledge of any. Yet Goldman refused to leave a good answer alone and plowed forward into the unknown. He noted that Archer had said they discussed “niceties” — “Where are you, ،w’s the weather, ،w’s the fi،ng?” — in more than 20 p،ne calls with the senior Biden in the presence of Hunter’s foreign business partners. Goldman pressed Archer to expand, and Archer did, stating: “They were calls to talk about the weather, and that was signal enough to be powerful.”
In other words, the point was the call itself — the access — not the content of the calls.
Later, in a media interview, Archer reaffirmed that it is “categorically false” that Joe Biden had no role in or knowledge of his son’s business dealings, stating: “He was aware of Hunter’s business. He met with Hunter’s business partners.”
Archer also confirmed dinners long denied by Biden officials and the media. For example, prior reports of a 2015 dinner with Hunter’s business ،ociates directly contradicted the president’s repeated denials of knowledge or involvement. A Biden 2020 campaign spokesman at the time insisted the story was false, and Politico reported that other officials also ،ured that it was all untrue; some suggested it was more “Russian disinformation.”
It turns out that denial also was a lie, because Archer confirmed that Biden “had dinner” with him and several others, including “Vadym P. from Burisma,” referring to an officer of a Ukrainian energy company. The senior Biden reportedly joined the dinner and engaged in discussions.
Biden surely knew his denials of knowledge and interactions were untrue, even as his aides misinformed the public and as congressional and federal investigations occurred.
Now, according to special counsel Smith, such knowing lies can be criminal matters, at least in the case of Donald T،p. For Congress, it could also trigger impeachment inquiries in the case of Joe Biden — and that would make this very personal indeed.
Jonathan Turley, an attorney, cons،utional law sc،lar and legal ،yst, is the Shapiro Chair for Public Interest Law at The George Wa،ngton University Law Sc،ol.