Biden should waive privileges and immunities in special counsel investigation to insure trust in outcome
President Reagan set model in Iran-contra investigation
President Biden is under investigation by a Special Counsel for, among other things, unlawfully removing and retaining classified information in violation of the federal criminal code, 18 U.S.C. 1924. The crime is no novelty. Former CIA Directors John Deutsch and David Patraeus pled guilty to violations, as did former national security advisor Sandy Berger. The offense requires proof that the removal was with the intent to retain the classified documents at an unauthorized location.
President Biden should waive the Justice Department’s policy against indicting or prosecuting an incumbent president. He should waive all claims of executive privilege or state secrets. He should waive the Fifth Amendment privilege against compulsory self-incrimination. Public confidence in the evenhanded administration of justice is a cornerstone of domestic tranquility.
Mr. Biden has asserted an eagerness to cooperate with Special Counsel Robert Hur appointed today by Attorney General Merrick Garland to investigate President Joe Biden about classified documents found in his home, garage, and office space long years after his Vice Presidency under President Obama had terminated. President Ronald Reagan set the model for executive branch cooperation in the investigation of high visibility wrongdoing in the Iran-contra scandal. Reagan waived executive privilege and ordered all relevant government agencies to provide documents and witnesses. They included national security advisor John Poindexter and his assistant Oliver North, national security advisor Bud McFarlane, Secretary of State George Schultz, Attorney General Edwin Meese, Secretary of Defense Caspar Weinberger, former presidential chief of staff Donald Regan, and Assistant Secretary of State for Inter-American Affairs Elliott Abrams.
Mr. Biden is seeking to differentiate his case from the parallel special counsel investigation of former President Donald Trump by John Smith for obstruction of justice, mutilation or destruction of presidential documents, and Espionage Act violations. Mr. Biden underscores that he has cooperated with law enforcement from the outset, whereas Mr. Trump has been fighting tooth and nail against the Department of Justice, including assertions of executive privilege and asking for a special master to review documents.
The distinction Mr. Biden is seeking to draw will be far more convincing if he waives presidential immunity, executive privilege, state secrets, and self-incrimination both to expedite the conclusion of the investigation and to show, like Caesar's wife, that he is above suspicion. Transparency, not secrecy, is the coin of the realm. Otherwise, the nation will be disserved by otiose endless arguments of whether Biden acted any differently than Trump in handling classified documents.
Maybe we should wait until we can determine what, if any, laws were broken before suspending Mr Biden's Constitutional protections. Mr Regan did not surrender his 5th Amendment rights for a much graver offense (deliberately violating the Constitution with regards to funding the Contras). Let's see where this goes.