The announcement that classified documents were found at an office of President Biden’s spurred numerous comparisons to the documents hoarded at Mar-a-Lago.
Let’s go over the facts.
The Biden Documents
According to the White House, “a small number of documents with classified markings” were discovered on Nov. 2 by the president’s personal attorneys while vacating office space used by Biden from mid-2017 to early 2020.
Those 10 documents had clearly visible stamps or cover material indicating they were sensitive, and were found in a locked closet. A locked closet does not qualify as a required SCIF, or sensitive compartmented information facility.
We do not know the level of classification of the documents. CNN reported the documents included intelligence memos and briefing materials, dated between 2013 and 2016, that covered topics including Ukraine, Iran and Britain.
The items were in boxes that included other unclassified items that fall under the Presidential Records Act, and should have been in the possession of the National Archives.
Do classified documents often show up in someone’s possession improperly?
According to Mark S. Zaid, an attorney who defends clients in these kinds of security matters, it happens all the time. Someone retires or leaves a job, he or she packs up boxes — and then sometimes years later they discover they accidentally stored a classified document in their garage or attic.
How the matter is treated depends on how the discovery is handled, according to Zaid.
Security clearance may be suspended if the matter is handled quickly and the documents were not seen by others, but those who “hoard” without authorization to take classified documents will be in trouble.
An example is Bill Clinton's national security advisor Sandy Berger, who unlawfully removed classified documents related to the September 11 investigation, destroyed some of them, and lied about it. In 2005, Berger pleaded guilty to a misdemeanor, removing classified material without authorization.
How did Biden respond to the discovery?
When the documents were discovered, the National Archives was informed and the material was immediately turned over.
Biden said he was surprised to learn of the discovery, and that he did not know what information the documents contain. Biden said his lawyers did not describe the documents to him.
Is that different than Trump?
Yes. Trump was contacted by the National Archives about missing documents in May 2021. Resistance to returning them resulted in a search warrant and seizure of documents.
Zaid 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.
Did the White House delay the information because of the midterm elections?
The initial stages of a DOJ investigation are often not public. In the case of the Trump documents, there were nine months between the National Archives request, and the public announcement that 15 boxes had been obtained from Trump. In the Biden case, the public announcement came after about two months.
What’s next?
Republicans are making false equivalencies, saying there is a “two-tiered” justice system for Trump and Biden, but there are major differences including cooperation.
The investigation is early, and there is a possibility of an appointment of special counsel. If prosecutors can prove probable cause, other Biden properties may be searched for more documents.
Investigators will need to learn how the documents ended up in Biden’s office — how were the boxes packed, for example, and who was responsible for arranging the transfer? Who might have had access to the documents? Many Biden staffers are now part of the Biden administration, and will be interviewed.
Did Biden have classification authority as Obama’s vice president?
Yes, by executive order Biden had the right to declassify documents he had originally classified, but declassified material would have been properly marked as such.
In Trump’s case, the DOJ has cited three criminal statutes that would apply, and none of them would require the documents to be classified in order to prosecute.
There are more details at The Washington Post.