One of the key facets of presenting legal arguments involves drawing parallels and distinctions between circumstances and parties. In large part, this is due to the significant role played by legal precedent in our justice system. 

Precedent refers to a court decision that is considered as authority for deciding subsequent cases involving identical or similar facts, or similar legal issues. Precedent is incorporated into the doctrine of stare decisis and requires courts to apply the law in the same manner to cases with the same facts. Some judges have stated that precedent ensures that individuals in similar situations are treated alike instead of based on a particular judge’s personal views.

Even non-lawyers understand the importance of ensuring that those similarly situated receive similar treatment. Ideally, Lady Justice is blind, and the law's application to all is unbiased. We do not, of course, live in an ideal world or operate with an ideal system — but we should strive to. 

Enter one current and one former president — both vying for that office again this November — both of whom find themselves in a classified documents pickle. Both are accused of having (improperly) retained — and improperly stored — classified documents. Both have been on the receiving end of a special counsel investigation into these matters. One is being criminally prosecuted. One is being patted on the head and escorted to an easy chair. 

The release of Special Counsel Robert Hur's Report regarding President Joe Biden's alleged mishandling of classified documents in early February caused a stir in multiple ways: On the one hand, Hur's recommendation against prosecution, even while acknowledging Biden's actions broke the law, seemed to be giving Biden a pass. On the other hand, Hur's rationale for giving that pass — namely, that Biden is too old and forgetful to expect a jury to hold him accountable for his misdeeds — severely undermines Biden's candidacy (and, for that matter, justification for remaining in office for the remainder of his term). 

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Understandably, former President Donald Trump's legal team has now pointed to the Hur Report in support of his defense in the criminal classified documents case pending against him in the Southern District of Florida. In a nutshell, the Trump team asserts that the leniency afforded President Biden points to both selective prosecution and vindictive prosecution on the part of Jack Smith as to Trump and is seeking additional discovery on that matter. Smith, however, begs to differ. 

In a reply opposing Trump and his co-defendants' motions to compel discovery (which may be viewed in full below), Smith attempts to draw significant distinctions between Biden's situation and Trump's, largely turning on Trump's purported behavior after the documents became an issue. 

“The defendants have not identified anyone who has engaged in a remotely similar suite of willful and deceitful criminal conduct and not been prosecuted. Nor could they,” assistant special counsel David Harbach wrote.

“Trump, unlike Biden, is alleged to have engaged in extensive and repeated efforts to obstruct justice and thwart the return of documents bearing classification markings,” Harbach added. “And the evidence concerning the two men’s intent — whether they knowingly possessed and willfully retained such documents — is also starkly different.”

...

“There has never been a case in American history in which a former official has engaged in conduct remotely similar to Trump’s,” he wrote.

Now, I'm going to give the prosecution its due here: First, they're doing what they're supposed to do in this type of response — i.e., distinguishing Trump's case from Biden's non-prosecution. Second, there do appear to be differences in Trump's and Biden's post-retention behavior. 

Then again, there were differences in their respective offices at the times the documents in question were retained. And differences in the span of time the documents covered and were retained. (And, the cynics among us might note, the respective political parties of the two...) 

One thing Donald Trump almost has to like about Smith's stance on this matter, however, is the fact that it implicitly acknowledges that he still retains his mental faculties. 

So, to those who claim Trump is only three-and-a-half years younger than Biden and thus, vulnerable to the same age-related criticisms, Trump might cheekily respond: "Yes, but I'm sentient. Even Jack Smith says so." 

gov.uscourts.flsd.648652.337.0_1 by Susie Moore on Scribd