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The Justice Department's decision not to prosecute President Joe Biden for keeping highly confidential files may not help Donald Trump escape his own classified documents case, a defense attorney told Newsweek.
On February 8, a Department of Justice (DOJ) special counsel announced that he would not prosecute Biden for keeping classified documents and wrote that Biden would claim he couldn't remember the details if put on trial.
Separately, Donald Trump is facing trial in Florida for keeping a stash of classified documents after he left the White House in January 2021. The former president denies any wrongdoing. On Friday, Newsweek emailed Biden's 2024 reelection campaign and Trump's attorney for comment.
Oleg Nekritin, a defense attorney at the Law Offices of Robert J. DeGroot in Newark, New Jersey, told Newsweek that the Biden decision was legal, even if it "raises questions about fairness".
"Prosecutors have discretion in deciding who they prosecute. A defendant may not argue his innocence based on the fact that a prosecutor failed to charge another individual accused of similar conduct," Nekritin said.
"From a political perspective, the DOJ's decision to prosecute one person, the president's challenger, but not the other, the president, for similar conduct, raises questions about fairness. But from a legal perspective, it certainly is permissible and within the prosecutor's discretion," he added.
Nekritin said that Trump will seek to have the charges against him dismissed, based on the Biden report.
"Former President Trump's legal team will argue selective prosecution based on political affiliation to dismiss the indictment. However, there does not appear to be legal precedent for the legal strategy to succeed. The strategy may have more success before the court of public opinion," Nekritin added.
Special Counsel Robert Hur's report on the classified documents found at Biden's home in Delaware and his Penn Biden Center office in Washington, D.C., was released on Thursday.
Biden gave a statement to the press, outlining his surprise, when news of the discovery of the documents came out in January 2023. Because of the president's cooperation and the fact it would have been hard to prosecute, Hur did not issue criminal charges to Biden.
"Mr. Biden 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," the special counsel said in his report.
"I cooperated completely, threw up no roadblocks, and sought no delays," Biden said in a statement on Thursday. "Over my career in public service, I have always worked to protect America's security. I take these issues seriously and no one has ever questioned that."
However, in a letter circulating online that addressed Hur and Deputy Special Counsel Marc Krickbaum, the White House said, "We do not believe that the report's treatment of President Biden's memory is accurate or appropriate ... In fact, there is ample evidence from your interview that the President did well in answering your questions about years-old events over the course of five hours."
Age concerns, as well as cognitive ability, have played a large part in the presidential campaign, with Biden aged 81 and Trump, the GOP frontrunner, four years younger. Critics across the political spectrum have mocked both for gaffes when delivering speeches, although there is no scientific proof that Biden and Trump are ailing.
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About the writer
Sean O'Driscoll is a Newsweek Senior Crime and Courts Reporter based in Ireland. His focus is reporting on U.S. law. ... Read more