In addition to the "small number" of classified documents in President Joe Biden's former think tank office, it turns out, he had a "small number" in the garage of his house in Wilmington, Delaware, plus one more in a room adjacent to the garage.* These were Obama administration records that Biden came across during his time as vice president, and they were definitely not supposed to be in those locations. What had initially seemed like a single lapse now looks like a pattern of carelessness, which creates several problems for Biden and the Justice Department.
First, Biden is no longer in a position to criticize Donald Trump's "totally irresponsible" handling of sensitive material that he retained when he left office. Second, the delay in acknowledging Biden's retention of classified records and obfuscation of its scope look like blatant attempts to minimize the political fallout. Third, a criminal prosecution of Trump for his handling of the government documents he took to Mar-a-Lago, which was always an iffy proposition, now seems doomed for political as well as legal reasons.
That is not to say there are no meaningful differences between what Trump did and what Biden did. Based on what we know so far, Trump's stash, which included 325 classified documents along with thousands of unclassified government records, was much larger than Biden's. And unlike Biden, Trump persistently resisted returning the documents, apparently because he considered them his personal property. That resistance included months of wrangling with the National Archives and Records Administration and incomplete compliance with a federal subpoena, which culminated in the FBI's August 8 search of Mar-a-Lago.
Then again, Biden kept classified records in unapproved locations for six years, while Trump managed to do that for about a year and a half. Biden said he was "surprised" to learn last fall about the documents in his former office. Biden "takes classified information and materials seriously," said Richard Sauber, the "special counsel to the president" who is overseeing the White House's response to the case of the misplaced secrets. "We are confident that a thorough review will show that these documents were inadvertently misplaced, and the president and his lawyers acted promptly upon discovery of this mistake."
The timing of these embarrassing revelations does not reflect well on Biden. Sauber said Biden's lawyers discovered the classified records at the think tank on November 2, six days before the midterm elections. But the White House did not acknowledge that discovery until January 9, and then only after CBS News reported that Attorney General Merrick Garland had asked John R. Lausch Jr., the Trump-nominated U.S. attorney for the Northern District of Illinois, to look into the matter. Even then, the White House did not mention the subsequent discovery of classified documents in Wilmington, which happened in December. That detail came out yesterday, again thanks to news reports that the White House then confirmed.
It is understandable that Biden did not want this story to break in early November, when it might have affected his party's performance in the midterms. It is also understandable that he would want to minimize the extent of his transgressions. But in the end, the lack of candor and transparency made him look cynical and shady as well as hypocritical.
Yesterday a reporter asked White House Press Secretary Karine Jean-Pierre about the delay in acknowledging the documents found in Wilmington, wondering whether the White House is "being transparent about that if that was already known and not discussed up front." Jean-Pierre did not want to answer that question, so she answered a different one:
You said "transparent." I want to say that we have been transparent here. That is why the minute that his lawyers found those documents, they reported it. They reached out to the Archives and the Department of Justice. And they did that voluntarily. And they were not compelled to do it.
It did not help that Sauber called the records found at the think tank "documents with classified markings," which was reminiscent of the weaselly way Trump's lawyers have described the Mar-a-Lago documents. Sauber's phrasing implied that maybe the records Biden kept, despite their markings, were not actually classified, the dubious claim that Trump repeatedly has made about the records he kept.
During an exchange with the president yesterday, a reporter noted that Biden was keeping "classified material next to your Corvette" and wondered, "What were you thinking?" Biden's response: "My Corvette is in a locked garage. OK? So, it's not like they're sitting out in the street."
Trump has a similar defense. The classified documents at Mar-a-Lago were not "sitting out in the street" either. The FBI found most of them in a locked storage area.
Garland, who previously had charged one special counsel, Jack Smith, with handling the investigation of the documents that Trump kept, has now appointed another special counsel, Robert Hur, to oversee the investigation of the documents that Biden kept. Smith was acting U.S. attorney for the Middle District of Tennessee during the Trump administration. Hur was the Trump-appointed U.S. attorney for Maryland from April 2018 to February 2021.
By appointing Smith and Hur, Garland aimed to address conflicts of interest and enhance the credibility of both investigations by making them quasi-independent. But the ultimate decision of whether to bring charges still lies with the man Biden chose as his attorney general.
Trump has already announced that he is running for president in 2024. If he wins the Republican nomination, his opponent is likely to be Biden, who has said it is his "intention" to seek reelection. In these circumstances, it is hard to imagine a scenario in which Garland can credibly decide to prosecute Trump but not Biden.
I am not saying there are no legally relevant differences between the two cases. At this point, there is considerably more evidence to support an inference of criminal intent in Trump's case. That applies to all three potential charges that the FBI mentioned in its Mar-a-Lago search warrant affidavit: removing or concealing government documents, retaining "national defense information," and obstructing a federal investigation.
But all three charges include mens rea elements that will be hard to satisfy even in Trump's case. Based on what we know so far, it is plausible that Trump's conduct can be explained by a combination of ignorance, arrogance, stubbornness, laziness, and carelessness rather than criminal intent.
Even if Smith turns up more evidence that Trump "willfully" mishandled documents or deliberately obstructed the FBI's investigation, prosecuting him while giving Biden a pass is bound to be perceived as unfair, inconsistent, and politically motivated. Trump's supporters surely would see it that way, and so would many Americans who have no particular allegiance to him and might even be inclined to vote for Biden in 2024.
To avoid the firestorm that such a decision would ignite, Garland could let Smith and Hur lay out their findings, make a show of carefully weighing them, and then decide there is not enough evidence in either case to prove criminal charges beyond a reasonable doubt. That might even turn out to be true.
*Update: On Saturday, Sauber said the classified material found in "a room adjacent to the garage," originally described as a single page, included five additional pages. It consisted of more than one document.
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