The Washington PostDemocracy Dies in Darkness

The Trump and Biden classified-document revelations are not the same

This image contained in a court filing by the Justice Department on Aug. 30, 2022, and partially redacted by the source, shows a photo of documents seized during the Aug. 8 FBI search of former president Donald Trump’s Mar-a-Lago estate. (AP)

After serving as Barack Obama’s vice president for eight years, Joe Biden did what high-profile former politicians so often do: He set up a think tank at a prominent university.

Biden’s was called the Penn Biden Center for Diplomacy and Global Engagement, headquartered at the University of Pennsylvania. But unlike other elected officials and other such institutions, Biden’s engagement with the Penn Biden Center was soon back-burnered. By April 2019, he was a candidate for the presidency.

In November, almost exactly two years after Biden’s election, attorneys for the president were emptying an office at the center when, according to their account, they discovered about 10 documents bearing classification markings. The next day, the documents were turned over to the National Archives. The Justice Department is now reviewing them.

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In its most concise distillation — documents with classification markings found in president’s office — the scenario seems like a mirror of the controversy that swirled around Donald Trump for much of last year, including the FBI search of his Mar-a-Lago property. Trump and his allies have, predictably, tried to draw this comparison, looping in funding that Penn (broadly; not the Biden center) has received from China.

“When is the FBI going to raid the many homes of Joe Biden, perhaps even the White House?” Trump fumed on the social media platform he owns. “These documents were definitely not declassified.”

But, just as the fundamental issue with the Trump documents is not whether they were classified, the situations with the two presidents are not obviously comparable in the way that Trump suggests.

At this point, we don’t know much about the Biden documents beyond what his team has made public, which is certainly an important caveat. According to the Biden team’s statement, the documents were found in a locked closet and quickly turned over to the government. What they contain is unclear, as is their current classification level or status. (There are, of course, numerous existing documents that are no longer classified but which may nonetheless still carry classification markings.) One person, tongue presumably in cheek, told CBS News that the documents did not contain nuclear secrets.

We know a bit more about the Trump documents. We know that the FBI search of Mar-a-Lago turned up dozens of documents with classification markings in multiple locations around the facility. We know that one box alone in Trump’s office at the event facility, a room where he regularly entertained guests, held more than a dozen documents.

Both President Biden and former president Donald Trump are involved in cases where classified government documents were found in their private possession. (Video: Blair Guild/The Washington Post)

We also know that the seizure of those documents came only after a lengthy effort to secure documents (both classified and nonclassified) that were produced during his presidency and were therefore government property. The investigation into Trump’s documents was triggered in May 2021 when the National Archives contacted Trump’s team about documents it knew existed but were not in its possession. (The country’s archivist, watching Trump leave the White House the previous January, later mentioned wondering what was in the boxes Trump’s staff was loading into Marine One.) Over the next few months, the Archives and Trump’s team went back and forth on taking possession of the material.

In mid-January 2022, Trump’s team finally handed over a large quantity of material, boxes of documents that The Washington Post reported had been packed under the oversight of Trump himself. In early February, Trump pushed for a public statement declaring that he’d turned over all pertinent documents. His staff balked. The Archives, meanwhile, discovered that the returned material intermingled classified and other material. A referral was made to the Justice Department to investigate possible mishandling of classified documents.

Past cases with classified papers show legal risk for Trump, experts say

As part of that probe, the Justice Department interviewed Trump staffers, who revealed that other classified documents were probably still in Trump’s possession. A grand jury issued a subpoena for any documents in Trump’s possession with classification markings — regardless of whether they are still classified. In early June, Justice Department officials traveled to Mar-a-Lago, where they were given a package of material, including classified material. Trump’s attorney Christina Bobb signed an affidavit asserting, among other things, that “any and all responsive documents accompany this certification.” In other words — all of the documents with classification markings had been turned over.

They hadn’t been. The Justice Department — prevented from searching boxes in a storage room at that June meeting — continued to interview staffers and subpoenaed surveillance footage from the area around that room. (It also asked that the door to the room be better secured.) Officials heard from a Trump staffer who told them Trump had ordered him to move boxes. This, combined with the surveillance footage, probably contributed to the FBI’s assertion in a court filing that “efforts had likely been taken to obstruct the investigation.”

In August, the FBI entered Mar-a-Lago to search for additional material. The dozens of documents mentioned above were found in this search.

Material with classification markings was found in at least 12 boxes in two rooms. Thousands of pages of other documents were also found, many of which probably fall into the category of presidential records that are property of the U.S. government. For all of the understandable attention on the classified material, it’s important to recognize that the Archives also sought and belatedly obtained numerous other records that Trump was not supposed to have without the government’s consent.

You can hopefully see how the Biden document disclosure differs in both scale and significance. Again, we don’t know all of the details of the Biden document production, so this assessment may change. But there’s no indication at this point either that the scale of information withheld from the government is as large or — more importantly — that Biden or his team endeavored to hide the documents from the Justice Department. There was no affidavit signed by Biden lawyers claiming that the closet at the Penn Biden Center no longer contained any classified documents before such documents were uncovered. There was no effort by Biden to argue publicly that he had given the government everything it wanted even though he hadn’t; in fact, there’s no indication the government was even looking for these documents in the first place.

We are by now deep enough into the Trump era of national politics that we are familiar with his attempts to rebut criticism by claiming that his opponents are doing equivalently bad or worse things. This is the approach he’s taking here, and, as always, his allies are echoing and elevating it.

It is not a good comparison.

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