One special counsel's conclusion that 'no criminal charges are warranted' against President Biden for possessing classified documents while out of office contrasts with another special counsel's decision to bring criminal charges against former President Donald J. Trump for retaining classified documents after leaving the White House.
After the Justice Department released the special counsel's final report in the Biden documents investigation this week, Mr. Trump sought to present the two issues as equivalent and said he was being treated differently for reasons policies.
“You know, look, if he shouldn't be charged, that's up to them, but then I shouldn't be charged,” Mr. Trump said at a campaign event in Harrisburg, Pennsylvania. . “This is nothing but selective persecution of Biden’s political opponent: me.”
But despite their superficial similarity, the facts of the two cases are very different, as highlighted in the report by the special counsel in charge of the Biden investigation – Robert K. Hur, a Republican whom Mr. Trump had previously appointed to two positions in the Ministry of Justice. Here's a closer look.
How are the situations similar?
The investigations included discovering that documents containing classified information had improperly accompanied Mr Trump and Mr Biden after they left office – Mr Trump when he left the presidency in 2021, and Mr Biden when he left the vice presidency in 2017 – and which were poorly stored. In both cases, Attorney General Merrick B. Garland appointed a special counsel to investigate.
How do the two men's responses differ?
In his report, Mr. Hur noted that “several important distinctions” between the two cases were clear and that the allegations against Mr. Trump, if proven, “present serious aggravating facts,” unlike the evidence implicating Mr. Biden . In particular, he added, the two men reacted very differently to the situations.
“Most notably, after being given several chances to return classified materials and avoid prosecution, Mr. Trump allegedly did the opposite,” Mr. Hur said in the report. “According to the indictment, he not only refused to return the documents for several months, but he also obstructed justice by having others destroy evidence and then lie about it . »
He added: “In contrast, Mr. Biden turned over classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations, including his home, voluntarily sat down for an interview and cooperated with the investigation in other ways. »
What was the biggest difference in the evidence?
To prove a crime, it is necessary to establish whether the unauthorized retention of sensitive files was “intentional”..” Because the staffers packed up their belongings, prosecutors would have to demonstrate that Mr. Biden and Mr. Trump knew they possessed the documents after leaving office, and there was a significant disparity in the available evidence.
As detailed in the indictment filed by Special Prosecutor Jack Smith, the investigation into Mr. Trump revealed substantial evidence indicating that he knew he still possessed government documents marked as classified and that he did not However, he failed to return them, even after being subpoenaed. them. He is accused of actively conspiring to keep them hidden.
In contrast, even though Mr. Hur found evidence suggesting the possibility that Mr. Biden knew he had classified documents, the special prosecutor concluded that the facts were not sufficient to prove it.
For example, the most important documents, which related to the war in Afghanistan, were found along with a jumble of unrelated documents in a cardboard box in Mr. Biden's garage. But Mr. Biden denied knowledge of those documents or how they got there, speculating that the people packing the vice president's mansion must have gathered them.
“We do not know why, how or by whom the documents were placed in the box,” Mr. Hur wrote.
Another issue involved notebooks in which Mr. Biden kept handwritten entries or notes about his personal life and official activities, including records of national security meetings involving classified matters.
While criticizing Mr. Biden for not keeping them secure, Mr. Hur concluded that the former vice president had good reason to believe he was allowed to keep them as personal property, citing precedent, notably that of former President Ronald Reagan.
What were the files in each case?
In Mr. Trump's case, several hundred classified government files — as well as thousands of unclassified documents and photos — ended up at his Florida club and residence, Mar-a-Lago, after he left the House White.
After extensive efforts, the National Archives and Records Administration was authorized to recover 15 boxes in early 2022, in which it discovered 197 classified files. In response to a subpoena for all the remaining documents, Mr. Trump returned another batch. But an FBI search at Mar-a-Lago uncovered 102 more classified documents.
According to court filings, topics included briefings on various countries, including many on military matters, one on a country's nuclear capabilities and a contingency plan to attack Iran.
An appendix to Mr. Hur's report lists about 50 files from Mr. Biden's vice presidency that were recovered, mostly involving the war in Afghanistan, that were either marked as classified or that investigators determined were more late that they contained classified information, as well as some of his trips abroad. taken when a senator was dating back to the 1970s.
Where were the files?
In Mr. Trump's case, files were found in a locked storage room at Mar-a-Lago and in drawers in his desk. The investigation also uncovered photographs showing some had been crowded into a bathroom and ballroom at the club.
In Mr. Biden's case, the files ended up in a storage closet in an office at his Washington think tank, the Penn Biden Center for Diplomacy and Global Engagement, which he used after leaving vice -presidency and before running for president, and in his home in Delaware. The most important war documents in Afghanistan were in a folder in a cardboard box in his garage.
And the recordings?
One of the parallels between the two cases is that investigators in each obtained recordings in which Mr. Trump and Mr. Biden appeared to indicate that they knew they had classified information even though they were not at the office and they were talking to niggers to get books. But Mr. Trump's reference was specific and investigators were able to link it to a specific record, while Mr. Biden's was vague and they could not identify what material he was talking about.
One of the accusations against Mr. Trump concerns a battle plan related to the attack on Iran that he is accused of showing to visitors to his Bedminster golf club. In an audio recording of that meeting, Mr. Trump can be heard crumpling paper and saying “as president, I could have declassified it” but that it was still “secret.”
In an updated indictment, prosecutors said that same document was found among 15 boxes of files that Mr. Trump returned to the National Archives and Records Administration in January 2022, months after the agency sought to recover them. (Mr. Trump claimed he never had a battle plan against Iran in that meeting and was referring to something else.)
In Mr. Biden's case, Mr. Hur obtained audio recordings and transcripts of the former vice president speaking to a ghostwriter with whom he was working on a memoir about his deceased son, Beau, in 2017 after Mr. Biden left office. Mr. Biden and while living in a rented house in Virginia.
Mr. Biden read aloud passages from his notebooks to the ghostwriter, in one case showing him a word he could not read while warning the writer that the material could be classified. On another occasion, Mr. Biden told the writer that he “just found all the classified information down there.” The context was a discussion of a memo Mr. Biden sent to President Barack Obama opposing Mr. Obama's decision to send more troops to Afghanistan in 2009.
But while Mr. Hur explored the possibility that Mr. Biden's offhand remark may have been a reference to the specific classified documents about the war in Afghanistan that were later discovered in the Delaware garage — which, if he was true, would make the recording evidence of deliberate withholding. – he found no evidence that these files were in Virginia's house.
Mr. Biden, for his part, said that he was instead referring to the search for a copy of his unclassified memo addressed to Mr. Obama, and that he had mischaracterized what made it sensitive and therefore what It wasn't something he wanted the author to talk about.
“I said 'classified'; “I should have said it had to be 'private,' because it was a contact between a president and a vice president about what was going on,” Biden said at a news conference Thursday. evening, after the publication of Mr. Hur's report. “That’s what he’s referring to.” This was not classified information in this document. It was not classified.
Mr. Hur also concluded that Mr. Biden's reading of the notebooks did not prove that he intentionally disclosed something that was specifically classified, and that overall the evidence in this case was “insufficient to address the burden of government in a criminal prosecution.”