RUTHFULLY YOURS

Special counsel Robert Hur found that there was enough evidence to charge Joe Biden with a crime, yet he didn’t.

As we know, Hur concluded that a jury would probably find that Biden didn’t have criminal intent, although he stipulated during his congressional hearing a couple of weeks ago that a reasonable juror might conclude that Biden was guilty.

If this wasn’t an outlandish decision on Hur’s part, neither was it inevitable. Clearly, the fact that recommending charges against Biden would have been a thermonuclear political event, potentially affecting the election outcome, helped stay Hur’s hand. He could have gone by the strict letter of the law but allowed prudential considerations — again, not unreasonably — to play a role.

The ongoing bout of civil cases and criminal indictments against Donald Trump and, soon enough, a criminal trial raise the question: Why, if Trump wins election, should his Justice Department accept Hur’s judgment? Why wouldn’t it simply take Hur’s report and fashion it into an indictment of former president Biden?

After all, if there’s anything we’ve learned recently, it’s that no one is above the law.

After getting her fraud judgment against Trump, New York attorney general Letitia James said, “No matter how big, rich or powerful you think you are, no one is above the law.”

This was her gloss on targeting Trump under an endlessly elastic statute meant to address consumer fraud and then, without any evidence of victims or harm, sticking him with a massive penalty.

When Trump got some relief from having to pony up a $450 million bond in the case, getting it reduced to merely $175 million, Jamelle Bouie wrote an outraged column, “No One is Above the Law, Except, Apparently, Donald Trump.”

Representative Dan Goldman rushed to Alvin Bragg’s defense when the Manhattan DA indicted Trump in the Stormy Daniels case last year with a piece titled, “I helped impeach Trump. His indictment shows no one is above the law.”

See? No one is above the law. That statement, of course, is a truism. In the hands of Trump enemies, though, it becomes something more — a rationalization for hostile prosecutors subjecting a political opponent to whatever they can possibly get him on.

By this standard, what would stop prosecutors in a Trump administration from trying to nail Biden? All the evidence is right there in the 350-page Hur report.

Sure, it used to be that we maintained a norm against indicting former presidents — to avoid the spectacle of it, to save the justice system from getting unnecessarily involved in highly fraught political cases, to prevent cycles of legal revenge between the two sides of our politics.

That norm is yesterday’s news, though. It got kneecapped in New York, and ground underfoot by a Jack Smith desperate to bring his cases in Washington and Florida before the election.

What makes norms strong is when both sides are invested in maintaining them, even when upholding them isn’t in their interest. But progressives had zero interest in the old norm of forbearance in such cases. They hate Donald Trump too much and were too desperate for the potential electoral advantage from trying and convicting him.

If this norm is gone, what else would stop a Trump DOJ?

The case against Biden would be too political, you say? What are the Letitia James, Alvin Bragg, and Fani Willis cases?

It’d be a bad practice for a prosecutor to take up a case that another prosecutor (or prosecutors) passed on? That’s exactly what Alvin Bragg did.

It’d be too much of a legal stretch to indict Biden? It’s not clear that it’d be a stretch at all. It’s more that Hur resorted to motivated reasoning to find a reason not to charge Biden. Regardless, it’d be much less of a legal stretch than the J6 case, with its reliance on an adventurous interpretation of fraud, or Fani Willis’s ridiculous RICO case.

Maybe a case against Biden wouldn’t succeed. But since when is that the standard? An indictment would harry and humiliate him, and drain him of resources. It would provide enjoyment to his political enemies. In short, it would do everything that’s been done to Trump, but with lower stakes — and no chance of interfering in an election — since Biden wouldn’t any longer be a candidate for office.

As Letitia James insists, “There simply cannot be different rules for different people.”

To be clear, I’m not saying going after Biden like this would be a good idea. It’d be a terrible idea for all sorts of reasons. I still support the old norm. The case against Biden should be aired publicly so voters can make up their own minds about him and his administration. If he loses in November, he should — unless he commits what Bill Barr has called an unambiguous, “meat and potatoes” crime — be left alone to tinker with his 1967 Corvette.

This is an outdated notion, though.

Jamelle Bouie complains that the politicized, attenuated cases against Trump aren’t moving fast enough: “As it stands, we’ll almost certainly be forced to wait on the verdict of the electorate to see if Trump ever answers for his crimes.”

Okay, then. Why shouldn’t the same be true for Joe Biden?