Trump Allies Blame Indictment on Biden, But Here's How it Works

Former President Donald Trump's arraignment on 37 federal felony counts related to his alleged mishandling of classified documents has caused widespread outrage among his conservative supporters, many of whom have decried the investigation as being politically motivated.

Trump, through his attorney, Todd Blanche, pleaded not guilty to all charges at the arraignment hearing in Miami on Tuesday afternoon after a grand jury indictment last week.

Among the swathe of criticisms, accusations quickly emerged alleging that President Joe Biden was directly involved or had oversight of the investigation.

House Speaker Kevin McCarthy posted a tweet on June 9, viewed 13 million times, that said: "It is unconscionable for a President to indict the leading candidate opposing him."

The same day, conservative commentators Matt Walsh and Benny Johnson joined in. Walsh's post, viewed 2 million times, said: "Biden has indicted his top political rival for doing something that he has himself also done." Johnson posted a live stream titled "President Trump Indicted by Biden."

McCarthy followed up his comments on Monday, tweeting that Biden was "weaponizing the federal government to go after his leading political opponent."

The process that's led to Trump's arraignment is complex, involving multiple agencies and officials. Characterizing the investigation as Biden-led does not do much to explain that complexity.

With that in mind, Newsweek investigated whether the facts of the case demonstrate any evidence that Biden was involved in the indictment.

To start, we need to look back at the steps that led to Trump's arraignment.

The indictment process began in May 2021 when the National Archives and Records Administration (NARA) asked Trump to turn over presidential records he kept after leaving the White House.

While 15 boxes were handed over to NARA in January 2022, the matter was referred to the Department of Justice (DOJ) after a review of the boxes found they contained classified documents.

Two investigations were then launched—one by the FBI in March 2022, and the other by a federal grand jury in April 2022, as stated in the indictment.

It's worth noting that the DOJ did ask the White House to request that NARA provide the FBI with access to the boxes.

However, as explained in a 2023 analysis by FactCheck.org, that is because under the Presidential Records Act of 1978, executive branch departments and agencies (such as the FBI) can request special access to records in NARA custody through the president, not through NARA.

The request itself is not a matter of collusion but the means by which authority was granted to assess the documents, i.e. it was not at the direction of the White House per se.

In May 2022, a grand jury issued a subpoena that required Trump to hand over all the classified material.

It also was a grand jury in the Southern District of Florida that voted for the indictment.

It's helpful to understand the role of grand juries in this, too, as explaining demonstrates another layer of independence within the investigation.

As mentioned, the subpoena requesting the requisition of classified documents and the indictment was the result of a grand jury request and vote, respectively.

Robert Fisher, a partner at law firm Nixon Peabody LLP who has more than 15 years of experience in federal and state prosecution, told Newsweek that the agencies involved in the investigation don't have grand jury subpoena power.

"You have to go to a federal prosecutor for that, right, so they will have to go to a federal prosecutor and say, 'I need a grand jury subpoena,'" Fisher said. "When that grand jury subpoena is issued, that's the beginning of the grand jury investigation."

While those juries will have already been convened within the DOJ, the jury is made up of an impartial body of citizens who have the power to issue subpoenas or issue an indictment.

As explained in an FBI process guide on federal prosecutions, if an indictment isn't issued, arresting agents in an investigation will have to bring the suspect before a magistrate or judge "who then will determine whether there is probable cause to believe that the arrestee committed a crime."

As was the case with Trump, however, the indictment was issued by the grand jury, leading to his arraignment.

So, we now know that the investigation has several layers of independence baked into it. The subsequent indictment by the grand jury also gave prosecutors the ability to arraign Trump without having to bring the case to a judge or magistrate, appearing to further that independence.

In an additional attempt to ensure the independence of the DOJ's involvement, in November 2022, U.S. Attorney General Merrick B. Garland appointed former chief prosecutor for the Special Court in the Hague, Jack Smith, to oversee the classified documents investigation.

While the Department of Justice's involvement has led to claims about politicization, the accusation appears to be political conjecture rather than an evidenced-based claim.

Garland too has faced the ire of conservative critics, with Senator J.D. Vance, an Ohio Republican, tweeting on Tuesday that Garland was "using his agency to harass Joe Biden's political opponents."

While Biden might have selected Garland, the appointment still required Senate approval. Further, Smith appointment as special counsel was made to help prevent DOJ conflicts of interest.

Biden, speaking to reporters recently, denied talking to Garland following Trump's indictment, saying: "I have not spoken to him at all, I'm not gonna speak to him, and I have no comment on what happened."

On June 8, Biden responded directly about whether Americans should "trust the independence and fairness of the Justice Department when your predecessor, Donald Trump, repeatedly attacks it?"

Biden replied: "Because you notice I have never once—not one single time—suggested to the Justice Department what they should do or not do, relative to bringing a charge or not bringing a charge. I'm honest."

Former U.S. Attorney Paul Charlton, a partner at Dentons US LLP, told Newsweek that while the attorney general is a Cabinet official subordinate to the president, "by long-standing tradition, the Department of Justice and its leader, the attorney general, have insisted on and operated with a greater degree of independence.

"The president may direct the attorney general on policy issues. The Clinton administration asked Janet Reno to focus on environmental issues and she complied. But a president may not direct specific cases, investigations or prosecutions.

"There are some notable examples in history of this independence in action. When then-president [Richard] Nixon ordered then-Attorney General Elliot Richardson to fire the special counsel investigating Watergate, Richardson refused and the Saturday Night Massacre occurred. More recently, former Attorney General Bill Barr refused to follow then-president Trump's directions regarding the election.

"So, too, here, Attorney General Garland, who during his confirmation hearings swore to uphold the independence of the DOJ, did not take orders from President Biden. This was a decision made independently and without the direction or consent of the White House."

The layers of independence strongly suggest that not only was the White House or Biden not involved in the investigation, but that even officials who were directly involved took reasonable steps to prevent conflict of interest and accusations of partisanship.

Taking this into account, could there be any further evidence that the White House or Biden intervened or had some degree of oversight in the investigation?

The indictment provides no evidence of White House involvement, the 49-page document making no reference to interactions with the White House or the Office of the President.

Although we don't know the extent to which Biden might have had any involvement in influencing the DOJ in its decision-making behind the scenes, or if he had any say on any of the decisions relating to the prosecution of Trump on these federal charges, there seems little reason to believe that Biden was directly involved.

Mark Osler, a former federal prosecutor and now a professor at the University of St. Thomas School of Law, told Newsweek that the distance between the White House and the DOJ investigation had been deliberate and would set "historical precedent" had it not been so.

"In contrast to the Trump administration, and probably in an attempt to distinguish itself from the Trump administration, the Biden White House has been careful to leave this kind of discretionary decision in the sole hands of the DOJ," Osler said.

"If President Biden really did direct that President Trump be indicted, it would be not only a break from historical precedent but his own practice."

Another former prosecutor, Peter Zeidenberg, now a partner at Arent Fox LLP, went even further, telling Newsweek that the notion of Biden's involvement was "nonsense."

"POTUS would have had zero involvement, or even knowledge, of what was going on in this investigation," Zeidenberg said. "He was deliberately walled off from it. Garland would not have even known all the details. I can say with high confidence that Biden had absolutely no role in any decision to charge Trump, and that he was unaware of any non-public information regarding the case."

It's possible (or even likely) that the White House might have had some knowledge of the investigation or other knowledge of the impending Trump indictment. However, the matter has several folds of independence between it, both from the U.S. Attorney General's Office to Jack Smith's special counsel, and the fact remains it was the grand jury's decision to indict Trump, not Biden's.

Even if the White House or Biden had knowledge of the matters, that assessment is speculative and does not significantly infer any degree of involvement.

The steps taken to ensure independence put even those associated with the matter (such as Garland) at a distance from direct involvement in the investigation, let alone the president (whose independence from Garland was already withstanding). As of now, there is simply no compelling evidence to support an argument that Trump's indictment is Biden-led and accusations appear to be little more than political commentary and rhetoric.

Newsweek has reached out to the DOJ, White House and representatives for McCarthy via email for comment.

Update 6/14/23, 1:40 p.m. ET: This story was updated with additional information.