The discovery of classified documents among President Joe Biden’s vice presidential papers in a Washington office has prompted some Republicans to yowl, claiming that an unfair double standard is being applied to Donald Trump’s stash of classified documents — but the circumstances of the finds are vastly different.
The uproar began on Monday, when the White House confirmed a CBS News report that a “small number of documents” with classified markings that appeared to be from the Obama administration had been discovered at a Biden-linked think tank.
Biden’s attorneys discovered the documents in a locked closet as they prepared to vacate office space at the Penn Biden Center for Diplomacy and Global Engagement. Special counsel to the president Richard Sauber said in a statement.
In February 2018, the University of Pennsylvania leased a suite of offices for the centre, including one for Biden’s personal use while in Washington.
Some Republicans in Congress, as well as Trump, questioned why the FBI wasn’t obtaining search warrants to see if Biden had any additional documents.
“When is the FBI going to raid Joe Biden’s many homes, possibly even the White House?” Trump made the announcement on his Truth Social account.
While much remains unknown about the Biden documents, there are significant differences — as well as some similarities — between the two cases.
How the documents were found
The National Archives, which is supposed to receive all presidential records when a president or vice president leaves office, contacted Trump officials shortly after he left office in 2021 to inform them that the agency believed some documents were missing and that the Archives required them to be returned.
In January of last year, Trump sent 15 boxes of documents from his Mar-a-Lago estate to the archives after months of back and forth. According to court documents, officials discovered classified documents in 14 of the 15 boxes, including 25 marked top secret. There were a total of 184 documents labelled classified in the boxes.
More would be discovered later.
In the Biden case, Sauber stated that the National Archives was unaware of the missing documents and had not requested their return from Biden. He stated that the White House counsel’s office notified Archives the day the records were discovered, and that officials there collected them the next day.
It is unknown how many vice presidential files and classified documents were discovered in the office. Only that Biden’s personal attorneys were packing files when they discovered “what appear to be Obama-Biden Administration records, including a small number of documents with classified markings,” according to Sauber. He did not specify the classification level of the documents.
According to two sources familiar with the situation, less than a dozen documents with classified markings were discovered at the office.
The Justice Department is conducting an investigation.
In both cases, the Archives notified the Department of Justice about the discovery of classified documents.
When the Archives informed Trump’s team early last year that it was going to hand over the documents to the intelligence community for a review of any potential harm to national security, Trump’s team objected and requested a temporary halt. According to court documents, the Archives granted Trump’s first request but denied his second.
The FBI later learned that Trump had additional government documents and issued a subpoena for their return. Trump’s lawyers turned over a packet containing 38 classified documents, including 17 marked top secret, in June. According to court filings, Trump’s lawyers showed the agents the storage room where the documents were kept but refused to let them look into the boxes that were still inside. They also provided investigators with a declaration that a “diligent search was conducted” and that “all responsive documents had been turned over,” according to government court filings.
The FBI later discovered that Trump had not fully cooperated with the subpoena and still possessed more classified documents. In August, they obtained a search warrant for Trump’s Mar-a-Lago estate and discovered over 100 documents labelled confidential, secret, and top secret in the storage room and in Trump’s office.
Later, Trump attempted to stall the investigation by requesting a special master review the documents and demanding their return, claiming they had been declassified and were his personal property.
NBC reported last month that a search for documents conducted later in the year at the request of Trump’s attorneys turned up two more documents with classified markings at a Florida storage facility used by Trump near Mar-a-Lago. According to sources, those documents were turned over to the FBI.
In the Biden case, Sauber stated 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” since the documents were discovered on Nov. 2.
According to NBC News, US Attorney General Merrick Garland has asked John R. Lausch, the US Attorney for the Northern District of Illinois and a holdover Trump appointee, to investigate how classified material ended up at the Penn Biden Center.
“This is an ongoing process under review by the DOJ, so we are going to be limited in what we can say at this time,” said Ian Sams, a spokesman for the White House Counsel’s office. But we are committed to doing things correctly, and we will provide additional information as needed.”
What were the presidents aware of, and when did they become aware of it?
It’s unclear when Trump learned that the Archives had requested the return of documents, but he was certainly aware before the 15 boxes of documents were delivered from Mar-a-Lago last January. He also interacted with FBI agents who went to retrieve the documents that his team had turned over in June.
His claims that he declassified the documents before leaving the White House and considered them his personal property also suggest that he was aware of at least some of the documents that were removed early on.
According to a source familiar with the situation, Biden was only made aware that classified documents were stored in his former office when his lawyers informed him that they had been discovered.
On Tuesday, the president told reporters that he was “surprised” to find out there had been government records in the office, adding that he didn’t know “what’s in the documents.
“We’re fully cooperating,” he said.
According to the statistics
Over 300 documents with classification markings were recovered from Trump by federal investigators. It is unknown how many classified documents were discovered in Biden’s office. Sauber called it a “small number,” while NBC reported that it was less than a dozen.
Concerns about security
The federal government has stringent guidelines for storing and handling classified records. It appears that neither Trump, who had documents in a West Palm Beach storage facility, a locked storage room in a high-traffic area at his Florida resort, nor Biden, who had them in a locked closet, met those standards.
In an email sent to Trump’s lawyers in June, the FBI expressed concern about how the documents were being stored at Mar-a-Lago.
“There is no secure location authorised for the storage of classified information at Mar-a-Lago. As a result, it appears that classified documents [REDACTED] have not been handled or stored appropriately since they were removed from secure facilities at the White House and moved to Mar-a-Lago on or around January 20, 2021 “According to the email. “As a result, we request that the room at Mar-a-Lago where the documents were kept be secured, and that all of the boxes moved from the White House to Mar-a-Lago (along with any other items in that room) be kept in that room in their current condition until further notice.”
Trump described the request as one to instal an additional lock on the storage room door, which he said was completed.
Special counsel Jack Smith is now in charge of the FBI’s criminal investigation into the handling of the Trump documents, as well as an investigation into his role in the Jan. 6 insurgency. Investigators were looking for evidence of three crimes involving the mishandling of sensitive government records, according to a document attached to the August search warrant that has since been made public.
At this point, there is no indication that the Biden investigation has turned criminal.
Former U.S. Attorney Barbara McQuade of NBC News said there are “several distinguishing factors” between the two cases.
McQuade stated on Twitter that when there is an aggravating factor, the Justice Department prosecutes mishandling of classified documents. “Those factors are obstruction of justice, storage in a manner that risks exposure, willful violation, and disloyalty to the United States,” she said in a tweet.
“All but that last factor appear to be present in the Mar-a-Lago case. There is no indication that any of the factors are met in the case of the Biden documents, but referral for investigation by the Chicago US Attorney, a Trump appointee, seems prudent.”