On Thursday morning, White House Counsel’s Office spokesperson Ian Sams confirmed overnight reports that a “small number” of documents “with classified markings” had been found at President Joe Biden’s Wilmington, Delaware, home. “All but one of these documents were found in a storage space in the president’s Willmington residence garage,” Sams wrote in a brief press release. “One document consisting of one page was discovered among stored materials in an adjacent room.”
The revelation that Biden may have improperly stored classified material has understandably been compared to former President Donald Trump’s ongoing legal battle with the Justice Department over the tranche of documents — some of which are alleged to have contained deeply sensitive information about Iranian nuclear materials and China-focused intelligence operations — taken from his Mar-a-Lago property in a court-approved FBI search this past summer. But while details about both Trump and Biden’s document troubles are still forthcoming due to the sensitive nature of each case, as well as the relative newness of the current president’s circumstances, there are some key differences to keep in mind when comparing the two incidents. Here’s everything you need to know:
What do we know about the Biden documents?
The discovery of these as-of-yet unspecified documents, stemming from Biden’s time as Barack Obama’s vice president, comes just days after the White House announced that similarly marked documents had been found in a locked closet at the Penn Biden Center for Diplomacy and Global Engagement, where the president had worked between 2017 and 2019.
Speaking with the White House press later that morning, Biden confirmed that the documents had indeed been found in his “personal library” and stressed that he was “cooperating fully and completely” with the Justice Department’s investigation into any potential mishandling of his vice presidential paperwork.
The broad outlines of both the Biden and Trump potential mishandling cases follow roughly the same narrative: documents — including some believed to be sensitive material — were found at the private residences of both men, in violation of the standards by which White House paperwork is cataloged and stored following the conclusion of an administration. Trump and Biden have also both insisted they are cooperating with the Justice Department without reservation, and accordingly, Attorney General Merrick Garland has named former U.S. Attorney Robert Hur as Special Counsel to investigate the Biden documents and “the possible unauthorized removal and retention of classified documents or other records discovered.” In mid-November Garland named Jack Smith as special counsel to spearhead the DOJ’s Trump-related work.
“I will ensure that Mr. Hur receives all the resources he needs,” Garland stressed during a brief press conference on Thursday, citing the “extraordinary circumstances” that demanded this decision.
As it turns out, quite a bit. While both men have found themselves embroiled in questions of how, and why, certain documents came into their private possession after their terms in office, the details of how each got to this point, and what was actually uncovered at their respective homes and offices, are quite dissimilar.
In Trump’s case, the dramatic FBI search of his property came after months of negotiations between him and the National Archives, during which he was repeatedly pressed to return the documents in his possession, and — at one point — even claimed, through an attorney, that he had actually done so. However, concern that he was still storing allegedly top-level national security secrets was enough to spur the Justice Department into action, with the agency requesting — and then executing — a search warrant at Trump’s Mar-a-Lago estate, where they reportedly found more than 300 highly classified pieces of material. To date, Trump has demanded the government return many of the reclaimed documents.
President Biden, meanwhile, voluntarily notified the National Archives about the discovery at the Penn Biden Center, of which there were reportedly just 10 or so. Crucially, those documents — and the ones discovered later in Delaware — were not subject to previous requests from the National Archives, with White House Special Counsel Richard Sauber stressing that “the president’s personal attorneys have cooperated with the Archives and the Department of Justice in a process to ensure that any Obama-Biden administration records are appropriately in the possession of the Archives.” Similarly important is the fact that thus far, there is no indication that any of the material found in Biden’s possession rose to the same level of classification, and accompanying national security breach, as that reportedly in Trump’s possession.
Complicating matters, however, is Trump’s unsubstantiated claim that he had, in fact, declassified all the documents in his possession while serving as president — an executive power that was, indeed, his to exercise as he saw fit (albeit not simply “by thinking about it,” as he later insisted). Biden, however, has not made any such claim, nor would he have had the authority to do so as vice president.
As national security pundit John Schindler noted on Twitter, the type of classification on the respective document finds matters as well. “IRL nobody gets indicted for mishandling CONFIDENTIAL (nor usually SECRET either),” he said. “But mishandling TOP SECRET documents, especially SCI, really can result in DoJ prosecution.”
What are experts and pundits saying?
Republican critics of President Biden wasted little time leaping on the news of both the first and second document discoveries, demanding a full investigation into the administration. Speaking with Fox News’ Sean Hannity ahead of AG Garland’s announcement, Sen. Josh Hawley (R-Mo.) demanded the Justice Department empower a special counsel to look at Biden, claiming “that’s exactly what Merrick Garland has done to Donald Trump. We can’t have two tiers of justice in this country … [and] it’s worse for Biden because he didn’t have the power as VP to declassify.”
Hawley had previously defended Trump following the Mar-a-Lago search, calling for the resignation of both Garland and FBI Director Christopher Wray, and saying that “this raid was an unconscionable act of political weaponization in America.”
“It’s really, really alarming, and it shows that this administration is willing to use law enforcement to further their political vendettas like a Third World country,” he added.
On Fox & Friends, newly appointed House Judiciary Committee Chair Rep. Jim Jordan (R-Ohio) unsubtly suggested that the documents found at the Penn Biden Center may have been accessed by “China.”
“Who owns the building? I don’t know,” he said. “We know China money funded a lot of activities at that Biden center.”
Jordan, too, had once gone out of his way to question the FBI’s Mar-a-Lago investigation, asking Fox News’ Laura Ingraham in August, “What was on the warrant? What were you really doing? What were you looking for? Why not talk to President Trump and have him give the information you’re after?” As The New York Times pointed out later that month, Jordan’s criticisms largely evaporated as the nature of the documents allegedly held by Trump came into focus.
Rep. Marjorie Taylor Greene (R-Ga.) offered a similar reaction to this latest Biden disclosure, tweeting, “Why is Merrick Garland/DOJ persecuting Trump? Because Donald Trump is a Republican and Joe Biden is a Democrat.” Greene had previously demanded the government “DEFUND THE FBI!” following the August Mar-a-Lago search.
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