The Biden papers and the Mar-a-Lago documents: Apples and oranges?

CBS broke the bombshell news that President Biden had stored a trove of government documents, including some two-dozen classified documents, in a private office in Washington that Biden used as part of his think tank relationship with the University of Pennsylvania, where he was an honorary professor from 2017 to 2019.

“The documents were discovered when the President’s personal attorneys were packing files housed in a locked closet to prepare to vacate office space,” Richard Sauber, special counsel to President Biden, said in a statement, adding, “The President periodically used this space from mid-2017 until the start of the 2020 campaign. On the day of this discovery, November 2, 2022, the White House Counsel’s Office notified the National Archives.”

The lawyers provided the papers to the National Archives the day after they found them, and the Archives took possession of the materials.

Attorney General Merrick Garland has referred the matter to the Trump-appointed U.S. attorney in Chicago, John Lausch, Jr., who will surely get to the bottom of the matter. While the process is still in a preliminary stage, Lausch has reportedly provided his preliminary findings to Garland.

The revelation sparked the inviting comparison between the Mar-a-Lago documents, now being investigated by Special Counsel Jack Smith, and the Biden papers.

Fox News Host Tucker Carlson lost no time slinging the mud, saying, “Biden was throwing classified documents in a private office at a fake think tank.” Trump tried to sling some mud of his own, pointing to funding that his alma mater, the University of Pennsylvania (broadly; not the Biden center) has received from China.

House Speaker Kevin McCarthy (R-Calif.) had this to say: “I just think it goes to prove what they tried to do to President Trump overplayed their hand on that.”

Rep. James Comer (R-Ky.), who chairs the House Oversight Committee, told CNN that he plans to press the National Archives for information about the documents. He said he would send a letter to the Archives (which his committee oversees) within 48 hours.

“President Biden has been very critical of President Trump mistakenly taking classified documents to the residence or wherever and now it seems he may have done the same,” Comer said. “How ironic.”

“So now we find out that Biden did the same thing for six years, for six years! And I wonder, is the White House gonna be raided today by National Archives or the FBI?” Comer continued.

Not so fast, Mr. Comer; better to withhold judgment.

The irony is not so clear as Comer suggests. From what is known publicly at this time, the Biden papers stand in sharp contrast in scale and importance to the Mar-a-Lago stash of documents. One is potentially criminal (Trump). And one is not criminal (Biden).

Biden and Trump’s classified documents involve two entirely different scenarios.

The documents discovered in Biden’s office had never been sought or requested by the National Archives or any other governmental entity; this was not true of the Mar-a-Lago documents. Trump attorney Christina Bobb signed an affidavit asserting, among other things, that “any and all responsive documents accompany this certification.”

In other words — all the documents with classification markings had been turned over. That statement was false.

Trump eventually gave 15 boxes of documents back to the Archives. After serving a subpoena and executing a search warrant, prosecutors found significantly more documents, the existence of which appears to have been concealed.  

The apparent cover up proves malicious intent. If it had been an honest mistake on Trump’s part, he would have returned all the documents as soon as the government demanded them. The Justice Department (DOJ) ordinarily requires a “plus” factor like obstruction before indicting in such cases. If Trump had done what Biden did, there would not have been an investigation.

It looks like DOJ is not backing down from its investigation into Trump’s retention of classified documents, nor should it.

Let’s compare what’s involved in each case.

Quality of documents: Trump, 325 documents, including 160+ secret; 60 top secret ( from the cache of documents he knew he had, and willfully withheld). Biden, 10 documents, some said to be top secret (a handful of documents that appear to have been inadvertently left behind).

Storage: The Biden papers were said to be stored in a locked closet. The Mar-a-Lago classified documents were found in 12 boxes piled in a storage room, as well as in Trump’s office.

Classification markings: Biden’s papers consisted of 10 classified documents, including U.S. intelligence memos and briefing materials that covered topics including Ukraine, Iran and the United Kingdom, according to a source familiar with the matter. We do not know yet what was the level of classification.

Trump’s materials contained over 100 documents with classification markings, comprising 700 pages; some of the Trump documents contained the highest levels of classification, including Special Access Program materials.

The Washington Post reported that some of those documents describe the nuclear capability of a foreign government’s military along with top-secret U.S. operations shared with only a select few government officials.

No nuclear related content was said to be in Biden’s papers (at least as far as we know now), and we do not know the level of classification.

Chain of custody: Recovered papers were not in Biden’s continuous possession. Trump’s documents were in his continuous possession.

Cooperation: Biden’s lawyers found the documents and alerted the National Archives. Trump resisted subpoena, and allegedly lied that production was complete. Trump is under investigation for obstruction of justice.

It violates the Espionage Act  to “willfully retain” sensitive national defense information “and fail to deliver it on demand to the officer or employee of the United States entitled to receive it.” Trump clearly did that; there’s no suggestion Biden did.

We know that Trump likes to defend himself from allegations of serious criminal activity by counterattacking. But it is no defense to allege that Biden did it too and got away with it.

In his stirring speech before Congress the other day, House Minority Leader Hakeem Jeffries (D-N.Y.) exhorted the country to choose “maturity over Mar-a-Lago” and “substance over slander.”

Does Biden’s apparent mistake exonerate Trump? The choice is yours. So far as we know now, the glove doesn’t fit — the comparison is apples and oranges.

James D. Zirin is a former federal prosecutor in the Southern District of New York.