By Charlie Savage
A special counsel’s conclusion that “no criminal charges are warranted” against President Joe Biden for possessing classified material while he was out of office stands in contrast with another special counsel’s decision to bring criminal charges against former President Donald Trump for keeping classified documents after he left the White House.
After the Justice Department released the final report of the special counsel in the Biden documents inquiry this past week, Trump sought to portray the two matters as equivalent and declared that he was being treated differently for political reasons.
“You know, look, if he’s not going to be charged, that’s up to them — but then I should not be charged,” Trump said at a campaign event in Harrisburg, Pennsylvania. “This is nothing more than selective persecution of Biden’s political opponent: me.”
But despite their superficial similarity, the facts of the two cases are very different, as the report by the special counsel in the Biden inquiry — Robert Hur, a Republican whom Trump had previously appointed to two Justice Department positions — stressed. Here is a closer look.
How are the situations similar?
The investigations involved the discovery that papers containing classified information had improperly accompanied Trump and Biden after they left office — Trump when he left the presidency in 2021, and Biden when he left the vice presidency in 2017 — and that were being stored improperly. In both cases, Attorney General Merrick Garland appointed a special counsel to investigate.
How did the two men’s responses differ?
In his report, Hur noted that “several material distinctions” between the two cases were clear and that the allegations against Trump, if proved, “present serious aggravating facts,” unlike the evidence involving Biden. In particular, Hur said, the two men had responded very differently to the situations.
“Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite,” Hur said in the report. “According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it.”
He added: “In contrast, Mr. Biden turned in classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations including his homes, sat for a voluntary interview and in other ways cooperated with the investigation.”
What was the biggest difference in evidence?
To prove a crime, it is necessary to establish whether the unauthorized retention of the sensitive files was “willful.” Because staff members packed up their belongings, prosecutors would need to show that Biden and Trump knew they possessed the materials after they were out of office, and there was a significant disparity in the available evidence.
As detailed in the indictment, brought by special counsel Jack Smith, the investigation of Trump uncovered substantial evidence indicating Trump knew he still had government documents that were marked as classified and nevertheless failed to give them all back, even after being subpoenaed for them. He is accused of actively conspiring to keep them concealed.
By contrast, although Hur found some evidence that pointed toward the possibility that Biden knew he had classified documents, the special counsel concluded that the facts were not enough to actually prove it.
For example, the most important papers, which involved the Afghanistan War, were found with a jumble of unrelated material in a cardboard box in Biden’s garage. But Biden denied any knowledge of the papers or how they got there, speculating that people packing up the vice president’s mansion must have thrown them together.
“We do not know why, how or by whom the documents were placed in the box,” Hur wrote.
A separate issue involved notebooks in which Biden kept handwritten diary entries or notes on both his personal life and his official activities, including accounts of national security meetings involving classified matters.
While criticizing Biden for not storing them securely, Hur concluded that the former vice president had a good reason to believe he was authorized to keep them as personal property, citing precedents including former President Ronald Reagan.
What were the files in each case?
In Trump’s case, several hundred classified government files — along with thousands of unclassified documents and photos — ended up at his Florida club and residence, Mar-a-Lago, after he left the White House.
After a protracted effort, the National Archives and Records Administration was permitted to retrieve 15 boxes in early 2022, in which it discovered 197 classified files. In response to a subpoena for any remaining such records, Trump returned another batch. But an FBI search of Mar-a-Lago uncovered another 102 classified documents.
According to court filings, the topics included intelligence briefings about various countries, including numerous ones about military matters, one about a country’s nuclear capabilities, and a contingency plan for attacking Iran.
An appendix to Hur’s report lists about 50 files from Biden’s vice presidency that were recovered, mostly involving the Afghanistan War, that were either marked as classified or that investigators later determined contained classified information, along with a few from trips abroad he took when a senator dating back to the 1970s.
Where were the files?
In Trump’s case, files were found in a locked storage room at Mar-a-Lago and in drawers in his office. The investigation also uncovered photographs showing some had been heaped in a bathroom and in a ballroom of the club.
In Biden’s case, files ended up in a storage closet of an office suite at his Washington think tank, the Penn Biden Center for Diplomacy and Global Engagement, that he used after he left the vice presidency and before running for president, and in his house in Delaware. The most important Afghanistan War papers were in a folder in a cardboard box in his garage.
What about the recordings?
One of the parallels between the two cases is that investigators in each obtained recordings in which Trump and Biden seemed to indicate that they knew they had classified information while out of office and talking to ghostwriters for books. But Trump’s reference was specific and investigators were able to connect it to a specific file, while Biden’s was vague and they were not able to identify what material he was talking about.