Trump had a series of run-ins with the DoJ and FBI over classified documents. Now Biden has some documents. Yet there are few similarities.
It might be easy to think that the recent Biden classified documents blunder is one that mirrors the Trump debacle, but you would be wrong. Here’s why.
First, let’s unpack exactly what happened with the Trump classified documents.
Back in May 2021, the National Archives and Records Administration (NARA—responsible, indeed, for the archiving of nationally important documents) contacted Donald Trump about missing documents following Trump’s loss of the 2020 election and the transfer of presidential records. The Presidential Record Act stipulates that the records must be transferred by the end of the term. Then White House Chief of Staff Mark Meadows said he would take care of this transfer, which took place on January 18, 2021.
NARA knew there was missing material (for example, the correspondence with Kim Jong-un and the congratulatory letter from Barack Obama) and contacted Trump’s team who promised the return of the material. But this did not happen.
Trump, on the other hand, had been displaying these letters in his office: “Mr. Trump shows off the letters from Mr. Kim, waving them at people in his office, where some boxes of material from the White House are being stored.”
Later in 2021, NARA issued a warning and a threat of a referral to the Justice Department. Trump apparently went through some, but not all, of the boxes of classified documents. In December, Trump’s lawyers (since it had got to this legal stage) informed NARA of the existence of 12 boxes.
In January 2022, the National Archives negotiated with Trump’s lawyers the retrieval of what was actually 15 boxes of material. However, within these boxes were classified documents. As a result, the Justice Department was contacted. Trump then received a grand jury subpoena seeking additional documents.
Of the documents in the 15 boxes, it was determined that 184 unique documents had classification markings, of which 25 were marked “top secret“, 92 “secret” and 67 “confidential.” These were all intermingled together and showed very poor record-keeping. As The New York Times set out:
The markings show that some documents pertained to foreign intelligence surveillance and information gathered by human intelligence sources. Some were not to be shared with foreign entities, and others were marked “ORCON,” meaning that the agency that originated the document had to approve any dissemination beyond the government entities approved to see it.
Mr. Trump’s handwritten notes are also found on some of the documents.
NARA criticized Trump because some of the records it received at the end of his administration “included paper records that had been torn up by former President Trump.”
The FBI then found fresh information and video footage indicating that Trump’s team had retained and was shuffling classified documents around. What made matters worse for Trump was that this came after one of Trump’s lawyers had signed a written attestation that all documents marked as classified had been turned over to the correct authorities. This was used as justification to search Trump’s residence at Mar-a-Lago, and in August, they seized a further 100 classified documents, ranging from confidential to tops secret. One empty classified folder was even on display at a Trump-themed bar in Trump Tower.
As The Washington Post reported:
While most were found in a storage room, some were found in desk drawers in Trump’s office, mixed with post-presidential communications with a religious leader, a book author and a pollster, among others.
Zaid [Mark S. Zaid, a security violations lawyer] said that if Trump had returned all the missing documents when the Archives first requested them, that would have been the end of the matter. It became a criminal matter “only because Trump and his lawyers delayed at first and then obstructed,” he said.
This, of course, invoked Trump’s very public wrath that he directed against the FBI and the Justice Department. The case is presently still being investigated with the Justice Department stating in court filings that it was still determining whether more government documents remain missing.
The first major difference—and there are many—came in how we found out about the Biden documents. On January 9 this year, the White House (through Richard Sauber, Special Counsel to the President) made a public announcement that “a small number of documents with classified markings” (apparently about 10) were discovered on November 2 as the President’s personal attorneys were clearing out an office that Biden had used from the middle of 2017 to 2020 as the then former Vice President.
These documents were found in a locked closet. Which is to say there were far fewer records (where Trump had over 300), and they were at least locked away. NARA was notified on the day they were found, and collected the documents the next morning. This is the other way around from the Trump scenario whereby Trump was contacted by NARA and eventually subpoenaed, initially resisting their return.
Biden’s lawyers then proceeded to search Biden’s two residencies in Delaware. At one, they found a small number of classified documents in his (locked) garage, and five pages in the house. These were given straight to the Justice Department. It is as yet unknown what level of classification these documents were.
We also don’t know how the Biden documents found their way to their locations, but we do know that Trump ordered the removal of the classified documents.
Some Republicans have suggested that this news was delayed until after the midterms (in the end, a 2-month delay), but in the Trump case, it took 9 months for the news to be made public.
While it is improper that classified documents ended up in his residence and at a previous office, there are many differences. There were far fewer, they were not brandished about but were locked away, and Biden not only cooperated with the Justice Department, he voluntarily contacted them and followed due process to resolve the situation. There was no subpoena or FBI search.
People who favor Donald Trump will desperately want to find an equivalence here. However, even a cursory glance at the data suggests that these two misdemeanors are in different leagues.