Donald Trump will not stop talking about his multiple criminal indictments. He talks about them in interviews. He posts about them so much that the Justice Department recently requested a gag order in his prosecution in Washington, D.C., because his incessant public commentary “threatens to undermine the integrity of these proceedings and prejudice the jury pool.” He vows retribution if he is reelected.
Meanwhile, Joe Biden remains silent about the fact that the Justice Department under his administration is, for the first time in American history, prosecuting a former president, that this person has been charged with trying to steal the last election, and that he also happens to be Biden’s leading political rival for reelection next year. The day that Trump was indicted in Washington, for instance, Biden was largely out of sight, on vacation in Delaware where he went out for dinner with his wife and saw Oppenheimer.
This odd juxtaposition was no accident. The White House has adopted a hands-off, no-comment strategy concerning the criminal cases against Trump. At this point, they are exercising so much caution and restraint that they have managed to adopt a different extreme and risky position — one of total silence at a crucial moment in American history and life.
In the process, they are inadvertently diminishing the seriousness of the cases, particularly the 2020 election case, by publicly acting as if they don’t exist, and they are failing to meet the moment for the American people and for the history books. As a matter of basic presidential leadership and constitutional responsibility, Biden should be trying to help the public understand how and why the cases were brought by his Justice Department and trying to put them in some broader political, legal, and historical context. Instead, he and his handlers are inadvertently feeding into the right-wing trope that Biden is an absentee president who is incapable of leading the country on even the most basic level, including by speaking publicly on matters of significant national and historic concern.
There is precedent for a more direct and assertive approach than the one that Biden and his team have adopted while still respecting Trump’s legal presumption of innocence.
In 1995, mere weeks after Timothy McVeigh was arrested for carrying out the Oklahoma City bombing, President Bill Clinton gave a commencement speech at Michigan State University in which he lamented “the smoke, the horror, and the heartbreak” of the attack on the federal government while also framing the legal and political response in broad but accessible terms. He did not mention McVeigh, by then a defendant, or anyone else by name, but he spoke directly to the American people and to right-wing extremists, telling them that “there is no right to resort to violence when you don’t get your way.”
He also sought to reconcile some of the political values at stake at the time: “If you want to preserve your own freedom,” Clinton said, “you must stand up for the freedom of others with whom you disagree, but you also must stand up for the rule of law. You cannot have one without the other.” McVeigh, of course, was eventually convicted and sentenced to death. (The parallels to our current moment are more than just thematic. The Justice Department official who oversaw the Oklahoma City bombing investigation was Merrick Garland.)
Biden’s silence is also odd given that last year, while it was known Trump was under criminal investigation, the president himself gave a speech in which he argued that “the Republican Party today is dominated, driven, and intimidated by Donald Trump and the MAGA Republicans,” which he called “a threat to this country.” He argued that they “do not believe in the rule of law,” “do not recognize the will of the people,” and “refuse to accept the results of a free election,” and he denounced politicians like Trump who seek to overturn “the will of the American people” using “baseless evidence-free claims of fraud.”
Now that Trump has been charged over the conduct Biden assailed in that speech, he seems to believe that he can no longer broach the subject.
Needless to say, given the literally unprecedented quality of the criminal cases against Trump, there are differences between those earlier situations and the one that now confronts Biden and the nation. Oklahoma City was far deadlier than the Capitol riot (168 people died in the bombing, including nearly 20 children), and Biden was making a political argument in the run-up to the midterms. Still, together they provide plenty of useful guidance and material for Biden and the White House to work with if they are up to the task of engaging with the public on the Trump cases.
What might that look like? Now that Trump has been indicted, Biden cannot directly endorse the veracity of the underlying factual allegations in the government’s cases or publicly suggest that Trump should be found guilty — doing so could legally taint the proceedings — but he can say much more than nothing.
He can, for instance, publicly lay out and make the case for the broad principles that undergird our criminal-justice system and that are at stake in the Trump cases, even without mentioning the former president by name. He can explain that he tasked Attorney General Garland with overseeing discrete criminal prosecutions of all types without specific White House input or involvement and that nothing about that dynamic has changed even though, ultimately, it is the president who is politically accountable to the American people for the operation of the Justice Department.
He can explain that it is essential as a nation that we strive for both accountability and equal treatment under the law; that the promise of equal citizenship and true democracy demands that the government and our legal system hold even the most powerful people to account; and that everyone deserves their day in court but no one is entitled to legal impunity — no matter who they are, how much money they have, what job they once held, or who they know. He can explain that we have in fact had a two-tiered justice system in this country for far too long, but it is not one that distinguishes between Republicans and Democrats; it is one that favors wealthy, well-connected, and politically powerful people at the expense of equal justice under the law, political stability, and social cohesion.
At the same time, it is critical that we ensure that there are fair trials both for the benefit of criminal defendants and the public, and there is, at all times, a broad social imperative to guard the integrity of our legal system. That means letting evidence and the law dictate the outcome of criminal investigations and cases. That also means doing everything we can to prevent political biases, political partisans, or the defendants themselves from improperly influencing the process.
More powerfully still, he might allude to the fact that he has a particularly deep personal stake in the matter. The Justice Department recently filed charges against Biden’s son, Hunter, and there is a high likelihood of another case to come focused on tax charges. The pending cases against Trump and Hunter Biden reside in entirely different universes of jurisprudential and practical significance, and there is no question that Biden did not welcome the prosecution of his son. But there is a modest silver lining for the president: The charges now afford him more rhetorical latitude, political insulation, and credibility to publicly address the charges against Trump than he might otherwise have had.
That is because the president is, like many people in this country already have and will in the future, now experiencing the pain and uncertainty of having a close family member ensnared by the Justice Department and our criminal-justice system — with no guarantee of how the proceedings will end and, at least in Hunter’s case, no clear precedent for the charges. The outcome will be decided by judges and juries, subject to the same processes, rules, and protections that apply to every other criminal defendant — Trump included. That is what it means to be sincerely committed both to the rule of law and to equality under the law: Even the president and his family must submit.
Of course, the form and content of any comments from Biden on the Trump cases would need to be carefully considered and lawyered, but these are manageable problems, and they are the sorts of challenges that good speechwriters and lawyers are paid to confront. Biden could, for instance, give a prominent speech on “The Rule of Law in America” to a well-respected legal organization or advocacy group, much as Barack Obama did in 2015 when he addressed the NAACP about criminal-justice reform. Biden does not need to mention either Trump or his son by name, but an effective and well-constructed set of comments would let the media and open-minded Americans fill in any blanks.
This does not necessarily need to happen imminently, but time is not meaningless either, particularly with both of Trump’s federal criminal trials currently on the calendar for the spring. Biden could wait until after the filing of more charges against his son, or he could do it in connection with the anniversary of the attack on the Capitol on January 6 in a few months — a particularly fitting opportunity, perhaps, given the Justice Department’s extensive work prosecuting people in connection with the day’s events, and one in which the subtext of any speech would be even clearer given the fact that Trump is now among those people charged.
For months, the unified front of silence coming from the Biden White House has been showing signs of stress. After Trump’s first federal indictment, Politico reported that Biden and his top aides had “taken a vow of silence” on the topic and had “explicitly ordered the national Democratic Party and his reelection campaign to do the same.” They have followed that directive, but in the time since, polls have consistently shown Biden and Trump in a dead heat in a general election contest.
Meanwhile, Trump has been explicitly campaigning on a platform of legal nullification and prosecutorial retribution — threatening to pardon violent January 6 defendants if elected and to pursue Biden, his family, and the federal law enforcement officials who are doing their jobs in the cases against him. Even setting Trump’s personal fortunes aside, this is a grave threat to the stability and integrity of our legal system, and it is directly antithetical to Biden’s stated political vision — something that he should be able to say.
All of this has prompted some people to ask pointedly whether Biden is blowing the chance to capitalize on one of Trump’s biggest political liabilities, but thus far, the debate has been anchored around some unhelpful extremes and burdened by a variety of misapprehensions. For one thing, winning next year’s election is not the only reason for Biden to speak publicly on this topic.
An equally good (if not better) reason is to minimize public disruption to the process — including Trump’s own efforts to inflame tensions and tank the cases — and to maximize public confidence in the legal process and outcome. However these cases end, they are undeniably historic proceedings whose consequences will extend well into the country’s future, but at the moment, there is no nationally unifying figure or voice working to help the public understand what is at stake or to counteract Trump’s incessant attacks on the legal system. Biden may no longer be a nationally unifying figure, but he is the president, and some basic notion of political responsibility and accountability is sufficient to warrant his public engagement.
No doubt, there are people who will continue to worry that it is too risky for Biden to speak even obliquely about the Trump cases, but there are significant legal and political risks attached to the rigid no-comment stance that the White House has taken. Trump could actually succeed in tainting the jury pools with his inflammatory comments and attacks on the government (a single person can hang a jury, resulting in a mistrial). He could also retake the White House by neutralizing or substantially mitigating the effects of the cases, even after convictions, by persuading a critical mass of voters (and potential voters who opt to stay home) that the Justice Department’s prosecutions are substantively meaningless and politically motivated.
At this point, no one should expect the Trump prosecutions to prevent Trump from being reelected or to carry Biden to victory. There are plenty of reasons for that, and they are not worth litigating here, but there is clearly more work to be done at this point to try to shore up public interest and confidence in the proceedings, while also reminding the American people that we can and should let criminal cases of all types run their natural courses — whatever the ultimate outcomes may be, and however personally we may feel the impact as bystanders.
Biden is uniquely positioned to do this — as the sitting president, as a broadly trusted national political figure, and now, as the father of a criminal defendant himself.
