Unlike Trump, who refused repeated government requests to return his own, larger set of documents, Biden’s team returned them to the government without being asked. But that still leaves the question of how and why they got there in the first place.
So at this point there are a variety of possible explanations, from benign to less benign, depending on what exactly the documents are, how they got there, and evidence of Biden’s personal involvement. But the early reports on the Penn Biden Center documents suggest they deal with intelligence about politically sensitive countries.
News of this situation has only just become public, and so far there hasn’t been reporting about whether Justice Department investigators think there might have been criminal lawbreaking. So right now, we’re still missing many facts about what happened and have only speculation to go on for much of it
.
The Trump documents controversy, on the other hand, began
when the National Archives realized, a few months after Trump left office, that various documents from his administration that should be archived under the Presidential Records Act were missing. A lengthy back-and-forth ensued: Trump
eventually returned some boxes that contained classified material, the Archives thought he was still holding some back and asked the FBI to get involved, and Trump
appeared to defy a grand jury subpoena to turn over the documents.
So in August, the FBI got a warrant to search Mar-a-Lago, and they found dozens more documents with classified markings there, per prosecutors. We still don’t know exactly what was in those documents — that’s a bit of a problem with publicly assessing the strength of cases like this, since the information remains classified.
But the
Washington Post reported that some documents had “highly sensitive intelligence regarding Iran and China,” including a description of Iran’s missile programs, and prosecutors
have expressed concern that the information could jeopardize human intelligence sources.
Yet reports have suggested the DOJ prosecutors and FBI agents working on this investigation are not in full agreement about the strength of the case.
According to a
Washington Post report in December, the FBI initially wasn’t sure it wanted to take up the case at all, and some agents “weren’t certain” they had probable cause for a search. And back in October,
Bloomberg News reported that some “internal critics” in the FBI were questioning why Trump would be charged when Hillary Clinton wasn’t in her own classified information investigation. (Clinton
had some classified information in email chains sent to her personal email account that she had used for work; Trump had paper documents in boxes at Mar-a-Lago.)
Furthermore,
another Washington Post story suggests that the more ominous and speculative theories about Trump’s motives in keeping classified documents weren’t founded, in investigators’ eyes. They’ve come to believe, instead, that his motive was “largely his ego and a desire to hold on to the materials as trophies or mementos.”
That would not get him off the hook for violating classified information law, but it’s certainly less of a clear-cut threat to national security than, say, the attempted selling of documents would be.
The differences between the two cases so far
There is a core similarity here in that classified documents were found at both the Penn Biden Center and Mar-a-Lago. There are also many differences, as well as other issues where we lack sufficient information to know what’s similar and different:
- There were purportedly 10 documents with classified markings at the Penn Biden Center and a “small number” at Biden’s Wilmington residence; over 300 were at Mar-a-Lago.
- Some of the Mar-a-Lago documents were reportedly very sensitive, involving intelligence about Iran and China. Some of the Biden Center documents were intelligence briefing materials about politically sensitive countries like Iran and Ukraine.
- Biden’s team claims to have returned the documents as soon as they discovered them, volunteering them to the National Archives without being asked. Trump, when asked by the Archives to return missing documents, gave back some but fought hard against returning others, including reportedly ordering some boxes moved to hide them from visiting government officials.
- Trump insisted the classified documents be kept at Mar-a-Lago. Biden’s level of involvement in keeping the documents is unclear, but they were reportedly found among other personal documents of his.
- Investigators believe Trump’s motive in retaining the documents was his “ego,” while it’s still unclear how the Biden Center documents got there.
Prosecutors will weigh all these topics in determining whether to bring charges. But the politics will be tough to avoid, too. There were already internal skeptics of the Trump case before the Biden news broke, and they were already going to have powerful subpoena-equipped allies in the GOP-led House of Representatives. Now they will surely be more active in criticizing any perceived double standard — and Garland and Smith may well think even harder before charging Trump.