If Joe Biden will not be prosecuted for mishandling classified material, why does Donald Trump face 40 felony charges based on conduct that looks broadly similar? It is a question that Trump's supporters were bound to ask after Special Counsel Robert Hur, formerly a Trump-appointed U.S. attorney, released his findings about Biden last Thursday. But Hur's report includes important details that plausibly explain the contrasting outcomes in these two cases. Although Biden's embarrassingly hypocritical lapses belie his avowed concern about safeguarding material that could compromise national security, the evidence of criminal intent is much stronger in Trump's case.
When Trump left the White House in January 2021, he took thousands of presidential records, including more than 300 marked as classified. The superseding indictment released by Special Counsel Jack Smith last July lists 32 of the latter, each of which is the basis for a charge under 18 USC 793(e). That provision applies to someone who "willfully retains" national defense information when he "has reason to believe" it "could be used to the injury of the United States or to the advantage of any foreign nation."
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