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Trump tries to make his own criminal indictment about Joe Biden

Biden allies, legal experts and strategists say silence may be the best option even in the face of a torrent of Trump attacks.
President Joe Biden listens during a graduation ceremony at the United States Air Force Academy on June 1, 2023.
President Biden has remained silent as Trump has blamed him for the federal investigation that led to Trump's indictment.Brendan Smialowski / AFP - Getty Images

WASHINGTON — When Donald Trump announced to the world Thursday night that he had been indicted on a raft of federal charges, his message was consistent and singularly focused: Joe Biden is using the government to crush his political comeback. 

That the attorney general appointed by Biden had named a special counsel to helm the investigation — a move intended to insulate the president from a decision to prosecute — was omitted by Trump and the battery of Republican allies who quickly rushed to his defense. And it’s likely to be a nuance lost on voters, as the indictment stokes Republican fears about political bias inside the Justice Department.  

But so far, Biden has shown no sign of changing strategy when it comes to his chief political rival’s legal woes: Stay silent and keep going about White House business.

“It goes into the category of the political idiom of, when your opponent is destroying himself, just get out of the way,” said Maria Cardona, a Democratic National Committee member and party strategist. “They are focused on having President Biden do what President Biden does best, which is focus on governing, focus on delivering, focus on communicating his accomplishments and focus on continuing to deliver what he promised to the American people he would. And in terms of the campaign, continue to focus on the message that he still needs to get the job done.”

It was the strategy Biden deployed when Manhattan District Attorney Alvin Bragg indicted Trump in late March, even in the face of Republicans insisting that Democrats were orchestrating the charges for political gain. But this time, Biden is far less removed from the action: The attorney general serves at his pleasure. And Trump is working to make sure voters don’t forget that. 

Trump’s announcement that he had been indicted began, “The corrupt Biden Administration has informed my attorneys,” going on to call it a “boxes hoax” and “election interference.” Nearly every statement after that continued to invoke the president for his predecessor's problems. 

But Biden allies, strategists and legal experts say the president may not have much of a choice but to stay silent.

Rick Wilson, a political consultant and a co-founder of The Lincoln Project, an anti-Trump group, described Biden as being “in a bit of a wedge” as Trump attacks his Justice Department and the president holds back from defending it. 

“A centerpiece of Trump’s defense is, ‘This is a political prosecution brought against me by the Biden government,’” Wilson said. “That’s sort of an unsolvable problem for Biden in a way, because if you deny it, then a denial is a full confession of guilt in the minds of the MAGA.”  

He added, “They are going to claim corruption; Biden shouldn’t give them ammunition or valences by which they can attack him.”

Biden allies painted the liability as baked in. 

“Well, there’s always political liability in enforcing the law with elected officials who are prominent. And you’re always subject to that charge every time. But what’s the alternative?” asked Rep. Gerry Connolly, D-Va., a senior member of the House Oversight Committee. “So we’re going to have a whole class of Americans for whom the law does not apply?"

“What happened to the principle that nobody is above the law? I think that’s a principle most Americans get," he said. And in the case of Trump, "there’s a huge distinction — it’s willful violations of the law and it is obstruction of justice,” he added.

'Go for the jugular'

Asked during a news conference Thursday what he could tell Americans to convince them they should trust the Justice Department’s independence, Biden responded that his record in office belies the accusations he now faces.

“You’ll notice, I have never once — not one single time — suggested to the Justice Department what they should do or not do on whether to bring any charges or not bring any charges,” he said. “I’m honest.”

But the president will need to resist pressure to fight back, as Democrats find themselves caught between a desire to watch Trump come under the full weight of the courts — and still be around to face Biden in the general election next year.

“There’s definitely an element of president’s base that want to go for the jugular on Trump,” said a Democratic strategist, who described Biden and the White House as “comfortable” with a strategy that refuses to deliver the “red meat” some Democrats may be hoping for. 

For now, “the best way to deal with some things in politics is to not interrupt a good story,” the strategist said, and conceded one advantage to facing off against the former president again.

He added, “With Trump, they’ve run the simulation before.” 

“We need Trump to win the primary at the end of all this,” said T.J. Rooney, a former chairman of the Pennsylvania Democratic Party. 

Ultimately, the Biden White House is hoping for a reprisal of the split screen that occurred in April, when television cameras flashed to images of Trump’s plane sitting on the tarmac at a New York airport ahead of his historic arraignment in a hush money case, while Biden gave a policy speech in suburban Minneapolis, making the contrast plain.  

“Most people who get indicted for espionage don’t get the GOP nomination. They get a trip to the supermax.”

Rick Wilson

Still, “in this crazy political atmosphere, you can take nothing for granted,” Cardona warned. “They’re not assuming that this will be good for Biden.”

The regular calculation seems to have gone out the window. 

“Most people who get indicted for espionage don’t get the GOP nomination,” Wilson said. “They get a trip to the supermax.”

The timing of Trump’s latest indictment may help Biden dispel accusations that his Justice Department is working to kneecap his most formidable potential opponent.

William Barr, who served as attorney general in the Trump administration, dismissed the notion that the Justice Department would be acting politically if it moved to indict Trump.

If prosecutors were in fact motivated by political considerations, they might wait until later in the election cycle to indict Trump, Barr said, or perhaps not indict him at all so as not to create an opening for a Republican rival better placed to overcome the former president’s vulnerabilities.

“If the department was being political, they wouldn’t move against him, and certainly not with dispatch,” Barr told NBC News. A politically minded Justice Department would opt to “not move against him or not too early,” and instead wait to “knock him out toward the end.” 

“Actually, the political play here would be not to indict him, but to leave the thing spinning for a while,” he said.

Silence is a posture, legal experts say, Biden should maintain. 

“The smartest thing he can do is stay 1,000 miles away from the investigations and not comment on them at all,” said Norm Eisen, who was President Barack Obama’s ethics czar in the White House. “Let the process run its course.” 

Of Trump, he added, “The guy is going to be bleeding by multiple criminal cuts entirely of his own making.” 

The circumstances favor Biden politically, Eisen said — even as the president faces potential liability over the discovery of several batches of classified government records inside his home and private office.

“Privately, I think the Trump prosecution is good political news for Biden,” he said. “If Biden himself were liable, it would be less beneficial, but it’s extremely unlikely that Biden has any liability here.”

Eisen cautioned, however, that “it’s very early days and the situation can certainly change.” 

'Let others make the argument'

A separate special counsel is investigating Biden over his handling of secret documents after the president’s personal attorneys found government files marked classified documents dating from his service as vice president at his now-shuttered Washington think tank, just before the midterm elections last year. Lawyers for the president notified the National Archives, which took possession of the documents. But the White House kept quiet until January when the news broke and new batches were uncovered at the president’s Delaware home and in his garage, drawing Trump’s accusation of a tiered justice system. 

Biden stayed silent despite facing intense criticism over his lack of transparency in the matter as new searches uncovered more documents earlier this year. Presidents and vice presidents are required to return government records to the National Archives and Records Administration when leaving office. 

Hunter Biden, the president's son, is also under investigation by the Justice Department, a point that Trump and his allies frequently invoke as they point to the Biden family’s foreign business dealings. 

Where Biden may face political peril is in comments that could give rise to suspicions that he’s meddling in that active investigation. 

“My son has done nothing wrong,” the president said in a May interview with MSNBC. In her East Wing office last year, first lady Jill Biden told NBC News that “Hunter is innocent.”

Legal experts said Biden’s decision to weigh in on his son’s case had complicated the appearance of impartiality.

“As painful and agonizing as it is for any parent to have to bite their lip, he’s also the president,” Eisen said. “Let others make that argument.”

“Because of the risk that line attorneys might feel pressure, it’s best — whether it’s presidents, vice presidents, governors — to not comment on pending criminal cases,” said Richard Painter, the chief White House ethics lawyer from 2005 to 2007 under then-President George W. Bush. He said the starkest risk was private pressure, though he said he saw no evidence here. Painter has been critical of Biden's handling of classified documents.

Even if the Justice Department were to charge Hunter Biden, it seems unlikely to satisfy Biden’s critics who say the system is unfairly targeting Trump. 

Rep. Scott Perry, R-Pa., who’s been investigated by the FBI for his alleged role in efforts to overturn the 2020 election, accused the Biden Justice Department of launching an “unabated weaponization of the federal government against the American citizens.”

“They’re targeting anybody that they disagree with politically and, obviously, they’re going to target the person and the symbol of the political party that they despise the most,” Perry, chairman of the far-right Freedom Caucus, said in an interview.

But he had no problem with the Justice Department investigating Hunter Biden: “I don’t really square it because, with all due respect, if you had a laptop like that out in public, and your local police had found it, you’d already be in jail right now.”