How Donald Trump’s Indictment Could Backfire on Joe Biden

Below is my column in The Messenger on how the second indictment could prove damaging for President Joe Biden. Ironically, both Trump indictments have blowback potential for Biden on the retention of classified material and the dissemination of false claims. Notably, the New York Times has reported that Biden has had his own Thomas Becket moments in telling aides that he wanted Trump 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 Trump relating to the 2020 election, CNN declared that the charges were “personal” for President Joe Biden, who previously said Trump’s words sounded like “sedition.”

Of course, Trump was not charged with sedition or even seditious conspiracy. Nor was he charged with conspiracy 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 against Trump 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 Trump indictment, based on little new evidence and even less established law, faces a major threshold challenge under the First Amendment. Smith is seeking to criminalize what constitutes disinformation, which not only runs against 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 Constitution protects false statements made in political campaigns. Yet it maintains that Trump 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 Trump were accused of using fraud for pecuniary gain or of lying to federal investigators, there would be no free-speech problem. The complaint, however, 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 without criminal charges.

This criminal intent is based on Trump being told by many people that the election was not stolen and he could not stop its certification. I was one of those who maintained that Trump was wrong on the election, Vice President Pence’s authority to void the results, and the Trump team’s challenges. However, Trump followed the advice of a second, albeit smaller, set of lawyers who told him there was a basis for challenging the election.

That is not a crime. It is, in my view, protected political speech. Presidents routinely lie on matters great and small. Many of those 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 slope that vests unprecedented power in the Justice Department.

There is a wicked twist in all of this for Biden. The very controversial linchpin used against Trump could conceivably be used against Biden, particularly in the launching of an impeachment inquiry by House Republicans.

While third parties proceeded to take steps to challenge the election and offer alternative electors, Trump continued to publicly deny the election’s legitimacy and failed to effectively call them back. He is accused of seeking out those who would legitimize or enable his political spin on his 2020 defeat.

Not dissimilarly, Biden has long been accused of knowing disregard for constitutional limitations as his administration has pushed unconstitutional 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 unconstitutional — but he listened instead to a Harvard law professor who reportedly assured him he had the authority. His eviction-ban order was quickly found unconstitutional 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 Washington Post now declares to be manifestly untrue. For years, Biden has allowed his staff, including White House officials, to repeat his denials while opposing any further investigation.

That is why guilt by implication or association, as employed by special counsel Smith against Trump, could be a dangerous legal standard for Joe Biden.

Hunter Biden’s former friend and associate, Devon Archer, told House Oversight Committee investigators last week that they were indeed selling “the brand” and that Joe Biden was part of that brand.

Ironically, Rep. Dan Goldman (D-N.Y.) — who 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 associates.

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, how’s the weather, how’s the fishing?” — in more than 20 phone 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 associates 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 assured 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 Trump. 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, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School.

214 thoughts on “How Donald Trump’s Indictment Could Backfire on Joe Biden”

  1. Follow Rep. Gaetz plan. get smith, weiss and garland to testify at the DOJ weaponization committee. then impeach garland.

  2. Trump doesn’t make it easy to support him. He should shut the hell up. He brings much of this craziness upon himself because he hasn’t learned to keep his big fat mouth shut. He faces enough opposition without pouring gas on the fire. What an idiot! and I am for the guy.

  3. Faux Trump impeachments I and II have forever changed the standard for what is impeachable to whatever annoy’s the majority of the house.

    House Republicans already have far more than they need to impeach Biden.

    More problematic is that Jack Smith himself could be prosecuted on the same basis he is raising to go after trump.

    When what is a crime depends on who is in power we are lawless.

    I beleive it is tactically unwise for Republicans to impeach Biden.

    Though they absolutely should begin impeachment proceedings.

    But Garland is a far better target. He is the nexus for nearly EVERY issue that Republicans want to investigate about this administration. And it pretty mujch does not matter on some issues what testimony republicans get = it will STILL be damning.

    Republicans can investigate how much Biden twisted Garlands arm. And should the evidence reveal no arm twisting – then the question is how much did Garland himself corruptly influence investigations.

    Garland’s best defense is that he was unaware of the corruption in the department he was running.

    Regardless, House republicans need the clout an impeachment inquiry brings. But Biden is politically the wrong target.
    Further the goal is NOT to move quickly, but to move slowly and methodically.
    Us the power of an impeachment inquiry to dig into everything.

    There is plenty more damaging evidence to expose. And Republcians do not need to prove EVERYTHING.
    The just need to bring sunlight to as much as possible.

  4. Prof Turley – We are Long past the point where it it credible to claim that the 2020 Election was NOT stolen.
    All that is in debate today is How many different fraudulent. immoral, unethical, illegal, and unconstitutional ways was it stolen.
    Whether you or anyone else likes it or not – the 2020 election WAS STOLEN.
    If the only claim that you accept is that the FBI illegally and unconstitutionally pressured social media to supress the Hunter Biden laptop story – that still constitutes election Fraud, and every poll of democrats has indicated that alone would have turned the election into a rout of Biden. Even if 90% of democrats polled are lying – Trump still would have won in a landslide.
    Even if 95% of democrats polled are lying – Trump would have still won.

    Whether you like it or not ONCE AGAIN – Trump and his supporters are RIGHT, and his enemies are WRONG.

    But there is more. More than Just the FBI was involved in this political censorship. Other Federal agencies were involved.
    Other private entities funded by the federal govenrment were involved. The democratic party was involved. The Biden campaign was involved. All of this WELL DOCUMENTED conduct is Election fraud. Some of it is also illegal. But it is ALL immoral and all fraud.

    And the fact that so many were involved in immoral conduct to win the election is very troubling.

    Falsus in Unum, Falsus in Omnibus.

    Why are we to beleive that those who lied to us about the collusion delusion, the Hunter Biden Laptop, Covid,
    Political censorship of social media, and on and on and on, did not also commit all kinds of other forms of election Fraud.

    At this point the ONLY reason for disbeleiving Sydney Powells claims that DVS rigged the election is because the audits in Windham, Antrim and Maricopa Counties established that in Those places – though DVS equipment had many unacceptable problems, that these did NOT flip the election. The Maricopa County audit absolutely revealed serious problems that likely allowed large scale election fraud.

    As for the rest of the claims of Election fraud – Why should we beleive that those who would committ the illegal and or immoral election fraud we know of beyond any doubt, would not also committ other forms of election fraud ?

    The absence of real inquiry and the presence of proven immoral and illegal conduct impugns the credibility of those claiming there was no fraud, not those claiming the was fraud.


    While you are FINALLY starting to understand that it does not LEGALLY matter if Trump was Lying – except with regard the trust of those supporting him, – though you keep hedging your bets with – Trump did have SOME advisors telling him the election was stolen.

    It does not matter if he had NONE. it does not matter if he had no support at all, nor if his view that the election was stolen was ludicrously stupid.

    Hillary Clinton continues to assert that the 2016 election was stolen – no one is prosecuting her – even though there are real crimes she is guilty of.

    Actually lying is usually(though not always) immoral, it is rarely illegal, and never illegal on its own.

  5. Is it insurrection to remove from office corrupted government officials that wipes their ass with our Constitution and have their screw thugs kill those that stand up to them under their Constitutional rights in dissent? Asking for a dead martyr, the debt due the People of theRepublic will be a heavy one, tab is past due.

  6. Unfortunately no matter how damning the evidence against Biden, He either owns the Deep State or they own Him. Their entire focus is on eliminating President Trump as a candidate. Everyone knows this. It is so blatantly obvious. The DOJ feeds the rabid salivating dogs of the Marxist Left, and it forces the rest of the nation to raise their middle finger at President Brandon. It’s becoming so bad, that even those who despise Trump are beginning to reconsider.

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