Biden Should've Disclosed the News of the Classified Documents Immediately

Still, It's a Stretch to Compare Biden's Situation to Trump's

So here I am. I begin writing a new post on Monday about the House rule changes, and news breaks that some classified documents were found back in November, before the midterm, in an office once used by President Joe Biden. These documents are dated between 2013 and 2016 when Biden was vice president. Then, today, another story breaks about more classified documents that were found in a different location.

For those thinking it, let me just get this out of the way. The Department of Justice won’t indict a sitting president. That has been policy for 50 years, and it won’t change. Get that out of your head. Plus, there are political solutions if the situation is warranted. Granted, I’m of the mind that the most extreme of these political solutions a) has been overused since 1998, with the exception of the proceeding that occurred in January 2021, and b) is meant to be used only for conduct that occurred when a president is in office.

Considering the fact that former President Trump is being investigated for possessing classified documents and his residence was searched by the FBI in August, the optics for Biden aren’t great.

Of course, based on what we know, there are very big differences between the investigation of Trump and what appears to have occurred with Biden. Again, this is based on what we know. In May 2021, the National Archives and Records Administration (NARA) asked Trump’s representatives to return documents, including his correspondence North Korean dictator Kim Jong-un. Fifteen boxes of records are taken into the possession of the NARA in February 2022, and classified documents were found in these boxes.

The Inspector General of the NARA referred the matter to the FBI, and the FBI opened a criminal investigation. In May 2022, a subpoena was issued that required the return of “[a]ny and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings[.]” Trump’s representative certified, after handing over more classified documents, that all classified documents had been returned.

After more back and forth over the security of the location in which documents were stored and probable cause that more classified documents were still at Mar-A-Lago, the FBI got a search warrant, and that warrant was executed in August. As we now know, more classified documents were found. In total, more than 300 classified documents were recovered between February and August.

The FBI based its search on probable cause violations of three statutes: 18 U.S.C. §793, §1519, and §2071. As a point of reference, the statute that former Secretary of State Hillary Clinton was accused of violating for storing classified information on a private email server was 18 U.S.C. §1924. The situations are different, although partisans won’t see it that way. In any event, each of the statutes referenced here has a mens rea, or the intent to commit a crime. Intent can be difficult for a prosecutor to prove, but it would appear that Trump meets the specific mens rea outlined in the three statutes cited in the search warrant.

As it relates to Biden, again, the fact that classified documents were found is problematic, and it does likely benefit Trump in some respect, legally and in public opinion. That said, the documents that have been found were reportedly immediately turned over to the NARA. Biden has said that he wasn’t aware that he had the documents. Granted, knowledge is an important element in a legal proceeding, not in public opinion. That’s very different from how Trump handled it, and he doesn’t deny that he had classified information. Republicans who are trying to compare these two situations as if they’re somehow the same are disingenuous. And again, that’s based on what we know right now. More may come out that changes that.

Still, Republican critics of Biden do have one valid point, which is the fact that the first classified documents were found in November, before the midterm election. The search of Mar-A-Lago was a major news story over the summer, and it likely had some impact on the midterm. Granted, the insurrection at the Capitol, I think, had a far larger impact. In any event, the search didn’t help Republicans, particularly those who were endorsed by Trump.

While I believe these two situations are very much not the same based on what we know right now, the fact that these documents were found should've been disclosed when they were discovered.