Thank you, Mike Pence! (No, really.)

Meg Kinnard/AP Photo

Former vice president Mike Pence announced yesterday that a search by his lawyers had turned up apparently classified documents at his home in Indiana. And I did a little happy dance. 

For nearly two weeks, the Biden Administration has been dogged by stories of ever more classified documents turning up in places they shouldn’t. With each new embarrassing revelation, the right seized and built upon the narrative while pummeling Biden. They launched investigations and howled about lack of security protocols, even while blithely ignoring the elephant in the room, Donald Trump. Earnest efforts by legal experts to emphasize the difference between what Biden did and what Trump did went largely ignored or unprocessed by the consumers of Fox News and other extremist media, in favor of the far simpler narrative: if Biden is innocent, so is Trump!

But with the news that Mike Pence also had such documents at his residence, and that they likely were far fresher than any Biden kept from his time as vice president before 2016, it’s a whole new day in classified documents land. Let’s explore why.

What happened with Pence?

Pence did the right thing, even though he now has his foot in his mouth a bit. Pence had claimed, in the wake of questions around Trump and then Biden, that he did not have any classified documents in his possession, specifically that there should be “no reason” for anyone to have such documents, “particularly if they’re in an unprotected area.” But to be doubly certain, and knowing that former White House officials were now under scrutiny for improperly keeping such documents, he had his staff look more carefully. And it turns out, he did indeed have some.

Per reporting by CNN, a lawyer for Pence discovered around a dozen documents marked classified at Pence’s home in Carmel, Indiana. The lawyer made the discovery at some point last week and then turned them over to the FBI. The Bureau and the Justice Department’s National Security Division have now begun their review, including how they got to his residence.

It’s important to emphasize that, like Biden, it isn’t clear that Pence moved the documents there himself. It could well have been a staffer who packed up documents and missed the fact that there were classified materials among the boxes. These documents could also be low-level classified, rather than top secret like some of the ones Trump had at Mar-a-Lago, making them far more commonplace. (There is a tendency to “overclassify” and mark documents as classified out of an abundance of caution, even when they don’t really contain classified information.)

You could feel the air go out of the room…

When the news about the Pence trove of documents broke, the frustration from pundits on the right was on full display. Jesse Watters of Fox News summed up their exasperation well, admitting to the politicization and false outrage over Biden’s documents while exclaiming, “I mean, Pence, seriously. We have this great thing going with Joe! Come on, man!”

Other Biden critics were left with egg on their faces. Just two days before the Pence revelation, Rep. Bryan Donalds (R-FL), best known for being the “I have a Black friend and I nominate him for Speaker!” stooge, had tweeted out criticism of Joe Biden, who was vice president at the time the classified documents were apparently mishandled. Donalds was at pains to distinguish and protect Trump while blasting Biden. But in so doing, Donalds inadvertently threw Mike Pence under the bus:

A former VP has NO ability to remove classified docs. Former Presidents are DIFFERENT. They have the ability to declassify. 

Biden's intent & usage of the docs is irrelevant. This is about when he removed them. Anything taken before he became POTUS is an Espionage Act violation.

That reading of the law wouldn’t be great for Pence if true, which of course it is not. Intent is key to whether the mishandling is prosecutable, as I’ll discuss further below.

The lamest attempted defense of Pence came from Watters on Fox News, who argued that Pence had been in “more of a rush” than Biden to leave the White House at the end of his term. “Remember that transition?” Watters asked his viewers. He even vouched for Pence’s honesty, saying “Pence won’t even be with another woman if his wife’s not in the room!” But if this is what the right is left arguing, they’re better off just moving on.

For starters, it isn’t clear that the Pence documents were part of a pack-and-move at the end of the term, however chaotic, or that Biden’s documents weren’t also inadvertently packed and sent to Delaware by someone else. Second, nobody is seriously arguing that anyone so far except Trump intentionally took, kept, and refused to return classified documents. And third, what Mother has to do with any of this is beyond me.

The triangulation with Pence reshapes the narrative

The Pence documents present another clear example of how you can do something negligent or grossly irresponsible and still not be criminally prosecuted, because intent is key. Yes, we should take these matters seriously, and yes, we should put in place more safeguards so that we don’t keep having this conversation. But it’s far easier for the public, and especially any moderate Republicans, to see and understand that “honest” and good Christian Mike Pence did what Joe Biden did, while neither did what Donald Trump did.

This sets up a narrative where the Justice Department can decide not to prosecute Pence or Biden for innocent mistakes, but can still prosecute Trump. Should Garland ever make such an announcement, it won’t look “political” because he would be letting two big politicians, one a Democrat and the other a Republican, off with an admonition, while bringing down the hammer on a third.

The three men’s respective knowledge will be material to this decision to charge or not charge. After all, as commentator Joyce Vance noted, 

[T]here is no indication Joe Biden knew classified material was present in boxes stored in his office and house. Same for Pence. There's abundant evidence Trump knew but still refused to return items to the gov’t.

Indeed, the fact that Trump had classified documents in his own office and in his desk drawers, next to things like his passports, shows that he not only knew he had them but he felt they were important enough to keep among his most critical personal documents. Compared to dusty boxes in garages that were forgotten about for years, that shows some key intent by Trump.

On the possible charge of obstruction, there is also nothing in the record suggesting that either Biden or Pence were anything less than fully cooperative with authorities, even if their best efforts still resulted in more documents being discovered. By contrast, Trump actively sought to prevent their return by, among other things, having his lawyers lie about the completeness of their searches and retrievals. 

Whether Garland decides to appoint a special counsel over the Pence documents will turn on whether there appears to be a strong need for him to appear impartial. The public may be ready at this point to accept the fact that people like former presidents and vice presidents mess up and keep documents by mistake, but there’s no need to create a brouhaha over it unless they resist returning them. 

Ironically, had Trump merely returned all the documents as initially requested by the National Archives back in 2021, none of this would have likely mattered at all to anyone. Now, Trump is left trying to defend Pence without undermining the argument that Biden should be investigated. “Mike Pence is an innocent man,” Trump wrote on his platform Truth Social. “He never did anything knowingly dishonest in his life. Leave him alone!!!”

Trump may have inadvertently hit the nail on the head with this awkward rush to defend Pence, whom he once called a “coward” for not overturning the election and whom he allegedly wouldn’t have minded seeing hanged. I can even imagine its use at trial: “So is it your position, sir, that people who have been ‘knowingly dishonest’ with authorities should not be left alone?”