We recently discussed the troubling declaration of guilt made by President Joe Biden at the start of the investigation into border agents allegedly whipping or “strapping” undocumented Haitians trying to enter the country. The statement shattered the integrity of the investigation as well as the reputation of the federal agents. Now, President Biden has called for the Select Committee looking into the Jan. 6th riot to hold those who refuse subpoenas in contempt and for his Department of Justice to prosecute them.

During the Trump Administration, many of us criticized the President for commenting on pending investigations and crossing the line on seeking to influence the Justice Department. A chorus of legal experts declared such public comments to be an attack on the rule of law and the integrity of the Justice Department. Those voices have been largely silent on Biden’s own comments.

Any contempt prosecution would be handled by the Justice Department. I have long been critical of its handling of such cases. However, Biden’s call ignores the fact that most of the Democratic leadership in the House supported the Obama Administration in refusing to even submit contempt cases to grand juries. That was the case with Eric Holder who was in flagrant contempt of House subpoenas in the “Fast and Furious” investigation. If the Democrats seek the prosecution of these Trump officials, they will have to step over a mountain of hypocrisy on such cases.

Of course, such hypocrisy has never been a major obstacle for either party. Indeed, Holder himself seemed immune from the shame of hypocrisy during his calls for total transparency in the Mueller investigation.

Calling for prosecutions as President is always problematic and unwise, particularly given the still unfolding matter before the Select Committee. This is a fairly early stage in such conflicts. There is often some line drawing and then some negotiations on the narrowing of inquiries and the waiver of objections. That may not succeed in this case.  With the 2022 midterms looming, the Democrats are at risk of losing the House and these subpoenas may die on the vine. Yet, it is unlikely that there could be any prosecution decision made before the election anyway without an abnormal and reckless rush by the Garland Justice Department.

This matter has not been resolved in Congress, let alone reached any decision stage at the Justice Department. The President should retract his statement and allow the process to work.

 



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