Dershowitz says Biden keeping classified documents nullifies any argument to prosecute Trump

Harvard Law Professor Emeritus Alan Dershowitz says the fact that President Joe Biden kept classified documents from his time as vice president nullifies any argument to prosecute former President Donald Trump.

Former President Trump's home, Mar-a-Lago, was raided last year by the FBI resulting in classified documents being found, leading to calls for him to be prosecuted. 

"You cannot have two systems of justice unless the claims against Trump passed what I used to call the Clinton-Berger test," Dershowitz said on Wednesday's "Just the News, No Noise" TV show. "Now it's the Clinton-Berger-Biden test. Unless his conduct is so much more egregious and unlawful than what the three Democrats were accused of doing, you can't have a criminal prosecution of Donald Trump."

Reports emerged earlier this week that a lawyer clearing out Biden's office at the Penn Biden Center in Washington had discovered a set of classified documents which reportedly included intelligence related to Ukraine, Iran and the UK. The documents were discovered in November and handed over to the government.

A second batch of classified documents was stored at a separate location, according to NBC News, which cited a "person familiar with the matter." 

Dershowitz noted that Biden had these documents while he was vice president and he didn't have declassifying authority. 

"We know for example presidents can declassify material when they're in office, but not after they leave office," he said. "We know that vice presidents cannot declassify material."

The Harvard professor said that he didn't think either former President Trump or current President Biden should be prosecuted for these documents. 

"There's not enough for a criminal prosecution of either of them," said Dershowitz. "Even if there was some inkling that maybe Trump should be prosecuted for Mar-a-Lago, it's not going to happen now. Merrick Garland is not going to want to be perceived as somebody who applies the law differently to Democrats and to Republicans."