By Tom Ozimek
The White House’s disclosure that classified documents were found in an office President Joe Biden used before taking office has prompted comparisons to former President Donald Trump’s keeping government records at his Mar-a-Lago home, raising questions about whether the two face the same legal consequences.
Legal experts who spoke to The Epoch Times gave contrasting views on the matter, with some insisting there’s no legal difference between Trump and Biden in terms of possible violations of laws that require classified documents to be turned over to the National Archives and Records Administration (NARA) to be stored securely.
The key differences between the two cases that could have implications for how the Department of Justice (DOJ) ultimately views the incidents, according to the experts, boil down to the volume of records kept and the degree of cooperation around their return to NARA.
A “small number” of classified documents were found on Nov. 2, 2022, in a locked closet at the Penn Biden Center for Diplomacy and Global Engagement as Biden’s lawyers were clearing out the offices, according to a statement on Jan. 9 by Richard Sauber, special counsel to the president.
Sauber said the documents were in a “locked closet” at the think tank Biden used after he served as vice president and that the records were turned over to NARA a day after they were found.
“Since that discovery, the president’s personal attorneys have cooperated with the Archives and the Department of Justice in a process to ensure that any Obama-Biden Administration records are appropriately in the possession of the Archives,” Sauber said.
News of the Biden classified-document discovery has led to comparisons to Trump, who at his Mar-a-Lago home in Florida kept materials with classified markings, which were seized in an FBI raid.
Trump, who is being investigated by the DOJ in connection with the incident but has not been charged, said he declassified the materials before he left office.
After news broke of the Biden-linked classified-document stash, the president’s allies rushed to his defense, while people in Trump’s camp questioned whether Biden would be treated with kid gloves or whether he, too, would face an FBI raid.
Trump, who said the FBI’s seizure of documents from his home was an act of retribution by his political foes, took to social media to ask: “When is the FBI going to raid the many homes of Joe Biden, perhaps even the White House? These documents were definitely not declassified.”
Biden, who in September 2022 called Trump’s handling of classified documents “totally irresponsible,” has not publicly commented on the discovery of records at the think tank.
After learning of Biden’s classified-document stash, Rep. James Comer (R-Ky.), the incoming House Oversight Committee chairman, told CBS, “We want to know exactly what documents were taken by both President Trump and now President Biden and want to know if they’re gonna treat President Biden any differently than they treated President Trump.
“What’s the difference in what President Trump did versus what we now know President Biden did?” Comer asked.
‘No Legal Difference Between the Two’
Derek Jacques, an attorney at The Mitten Law Firm, told The Epoch Times in an emailed statement that any removal of classified documents poses a problem for any elected official, be it Trump or Biden, or anyone else.
“It doesn’t truly differ from Trump’s document stash at Mar-A-Lago,” Jacques said. “While there is the implication that storing them in your private residence might seem less secure than an office in a think tank, there is no legal difference between the two.”
Jacques said that, from a legal standpoint, there will need to be an investigation into the documents found at Biden’s office. Such a probe would also include a determination as to the degree to which the action could damage national security interests, he added.
There are unconfirmed media reports—with CBS citing unnamed “sources with knowledge of the inquiry”—that a U.S. attorney has been appointed by Attorney General Merrick Garland to review the documents and that the FBI is also involved in the inquiry.
The FBI search warrant used to raid Mar-a-Lago was issued about a possible violation of federal laws, including the Espionage Act. It authorized the seizure of documents and records at Trump’s home that may have been “illegally possessed in violation of 18 U.S.C. § § 793, 2071, and 1519.”
The most serious of the violations carries a maximum penalty of 20 years in prison, though the listing of the statutes in the warrant is not equivalent to a formal charge and Trump has not been accused of any crimes.
Jacques told The Epoch Times that, while he sees no legal difference between Trump and Biden and their respective document stashes, the discovery of classified materials at Biden’s office poses a political dilemma for the president, given his scathing criticism of how Trump handled documents.
“From a political standpoint, the fact that these documents were discovered does provide the Republicans a chance to brand Biden and his team as hypocrites, as they have been critical of Trump for the documents seized in the Mar-A-Lago raid,” he said.
It’s a point made by Comer, who in a statement said that “under the Biden Administration, the Department of Justice and National Archives have made compliance with the Presidential Records Act a top priority.”
A federal law called the Presidential Records Act established detailed protocols around the ownership and transfer of official records of presidents and vice presidents.
The act requires the preservation of memos, letters, notes, emails, faxes, and other written communications related to a president’s or vice president’s official duties and requires that such records be transferred to NARA for secure storage after the end of their terms.
‘Clear Delineation’ Between Trump and Biden Cases
Some legal experts who provided statements to The Epoch Times said they do see differences between Biden’s and Trump’s respective handling of classified materials.
“I see a clear delineation between President Biden’s classified documents and former President Trump’s based on the fact set, not any political ideology,” said Aron Solomon, chief legal analyst at Esquire Digital.
Solomon said that, in Trump’s case, there was an intent to “take and hide” documents that had classified markings—including ones marked “top secret”—and that the former president refused to return the materials, even under the power of subpoena.
In May 2022, the DOJ issued a grand jury subpoena for Trump’s records, and officials visited Mar-a-Lago on June 3 of that year to collect the materials, according to court documents filed in August 2022 (pdf).
The court documents say that, when the officials got to Trump’s home, the former president’s attorney handed them a “single Redweld envelope, double-wrapped in tape” containing documents.
A custodian for the records presented a sworn certification to the officials saying that “any and all responsive documents” to the subpoena had been located and produced.
A Trump lawyer said that all records that had come from the White House had been held in one location—a storage room—and that there was none in any private space or other spot at the house.
Doubting the accuracy of those representations, the FBI obtained a search warrant and returned on Aug. 8, 2022, to carry out a search.
“That the FBI, in a matter of hours, recovered twice as many documents with classification markings as the ‘diligent search’ that the former president’s counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter,” the court document states.
The DOJ also stated in court filings that, besides probing possible crimes into mishandling national defense information, it’s also looking into possible obstruction of justice.
Biden’s classified-document case, by contrast, was characterized by quick and eager cooperation with NARA, according to Sauber’s statement on Jan. 9.
Solomon, too, highlighted this in his remarks to The Epoch Times.
“These documents were turned over once they were discovered before the National Archives, the FBI, the DOJ, or any other body or agency asked him to do so,” he said.
Another difference, Solomon said, is in the sheer volume of documents seized at Mar-a-Lago compared to the ones at Biden’s think tank office.
“Under the Biden fact set, as we know it today, there was a comparatively very small amount of classified information in documents President Biden had after serving as Vice-President,” Solomon said.
FBI agents seized 103 documents marked classified at Mar-a-Lago, including some marked top secret.
Jacques insists, however, that the difference in the volume of documents is mostly optics.
“From a legal standpoint, it may not make much of a difference on the volume of documents; however, the ‘top secret’ classification does matter,” he said. “The issue, again, reverts back to whether or not Trump declassified any of the materials seized at his home.”
Trump has insisted he did declassify the documents, though details around the declassification process and status of the documents remain unclear and are under investigation.
Biden, by contrast, did not have the authority to declassify documents. This fact, Jacques insisted, is “material.”
Another difference between Biden’s and Trump’s document handling, according to another expert who commented on the case to The Epoch Times, is that Biden’s case doesn’t seem to suggest there was any obstruction.
“There doesn’t seem to be an indication of potential obstruction of justice because the possession of the documents was self-disclosed, and Biden’s legal team is cooperating with the National Archives and Justice Department,” Oman Ochoa, founding attorney at Omar Ochoa Law Firm and City Attorney for Edinburg, Texas, told The Epoch Times in an emailed statement.
“That cooperation is a big difference from Trump’s situation, which required the Justice Department to obtain a search warrant because of the level of non-cooperation,” he added.
Jacques added that, overall, the Biden team’s handling of the documents means they “end up looking like they made an honest mistake” while in Trump’s case, “it ends up looking like he has something to hide,” which will encourage the DOJ to “dig deeper.”
The Associated Press contributed to this report.