Does the classified papers stash make Biden as bad as Trump? Here is the key difference

News analysis: How President Biden’s attorneys reacted to discovering documents with classification markings in a locked office once used by the president will go a long way toward keeping the Department of Justice off his back

The image included in a US Justice Department court filing on Tuesday against Donald Trump (US Department of Justice/AFP/Getty)

To hear Republicans react to reports that attorneys working for President Joe Biden had discovered — and promptly reported — the presence of documents bearing classification markings at a Washington, DC, think-tank where he kept an office before launching his 2020 presidential campaign, one might think Christmas came early in the new year.

Georgia representative Marjorie Taylor Greene, a staunch defender of former president Donald Trump, immediately took to right-wing host Tucker Carlson’s Fox News programme to declare that attorney general Merrick Garland “should be impeached” if Mr Garland fails to treat Mr Biden the way Mr Trump was treated after he refused to return classified documents that he’d taken to his Florida home before leaving office.

Since his term ended in January 2021, the National Archives and the Justice Department have been pushing Mr Trump to return documents that he took from the White House, some of which have been reported to be classified at “top secret” levels or higher.

The back-and-forth culminated in the FBI’s search of Mr Trump’s Florida home on 8 August 2022, at which point special agents recovered more than 100 such documents. Between the documents found during the search, another tranche turned over in response to a grand jury subpoena, and the contents of 15 other boxes returned to the National Archives in January 2022, Mr Trump has allegedly had possession of more than 300 classified documents long after his ability to legally possess national defence information expired.

A Department of Justice special counsel, Jack Smith, is overseeing a probe into whether Mr Trump violated US laws governing handling of national defence information by hoarding the documents.

Most legal experts and intelligence veterans believe the ex-president faces considerable legal peril from Mr Smith’s probe.

And while the GOP has not been willing to criticise Mr Trump, they are jumping on the news of the discovery of roughly a dozen intelligence memoranda and briefing documents at an office Mr Biden used at the Penn Biden Center, a think-tank in Washington. A second set of documents was reportedly recovered at another location linked to the president in a follow-up search, multiple outlets reported in January. Mr Biden confirmed that additional documents were discovered in the garage of his Delaware home. Mr Garland has appointed a special counsel to oversee the investigation into the classified documents related to Mr Biden.

Republicans have painted the Biden discoveries as an equivilent offence that can be used to argue that Mr Trump is being singled out for political reasons.

The ex-president’s eldest son, Donald Trump Jr, expressed the line many Republicans have taken in the wake of the revelations in a Tuesday post on Twitter, writing: “Biden kept classified documents from the Obama administration that he as VP would not have had the ability to declassify and I have yet to hear about the FBI Hostage Rescue Team raiding one of his homes? Why the double standard?”

House majority leader Steve Scalise, a Louisiana Republican, suggested that the media is already giving Mr Biden kid glove treatment over the matter during a press conference.

The image included in a US Justice Department court filing on Tuesday against Donald Trump (US Department of Justice/AFP/Getty)

“If then-Vice President Biden took classified documents with him, and held them for years, and criticised former President Trump during that same time that he had those classified documents … I wonder why the press isn’t asking the same questions of him,” he said.

In fact, the press did ask questions about the matter when Mr Biden appeared for a bilateral meeting with Canadian prime minister Justin Trudeau in Mexico City, but the president declined to answer their queries.

Another top Republican, incoming House Intelligence Committee chairman Mike Turner of Ohio, asked the Office of the Director of National Intelligence (DNI) to conduct an assessment as to whether the discovery of documents at Mr Biden’s former office indicates any damage to US interests.

In a letter to DNI Avril Haines, Mr Turner warned that Mr Biden could be “in potential violation of laws protecting national security,” such the Espionage Act and Presidential Records Act.

“Those entrusted with access to classified information have a duty and an obligation to protect it. This issue demands a full and thorough review,” he said.

Yet despite the seemingly gleeful way Republicans are reacting to the news that Mr Biden or someone working for him may have packed classified documents in a locked office closet six years ago, there’s a key difference they are missing.

When Mr Biden’s made their discovery on 2 November, their first call was to the National Archives, which under the Presidential Records Act would have been the proper custodian of any Obama-Biden administration records.

According to special counsel to the president Richard Sauber, the Archives retrieved the documents the very next day.

Joe Biden with Canadian prime minister Justin Trudeau (AP)

Legal experts say that fact alone not only differentiates Mr Biden’s case from that of Mr Trump, but it actually makes it far more likely that Mr Trump will face indictment for his conduct, as he now appears all but certain to this July.

Mr Trump never once attempted to notify the Archives as to what he had taken to his Florida home upon leaving office. It took Nara a full year after the end of his term to reach an agreement for the ex-president to return 15 boxes of materials and only then did archivists discover classified documents among what had been brought back from Florida.

According to court documents, Mr Trump and his aides actively resisted returning more documents until presented with a grand jury subpoena, then turned over another tranche in June 2022.

But the resistance to returning what was rightfully government property continued for months, leading the Justice Department to ask a magistrate judge for a warrant to search the ex-president’s home after developing evidence showing that he’d lied about having turned it all over to the government.

Whereas Mr Biden’s lawyers promptly notified the government that they had discovered potential national defence information among papers in his former office, Mr Trump refused to return similar information after being asked to return it.

It’s that refusal that experts say could leave the ex-president on the hook for violating a criminal statute that makes anyone who “willfully retains” national defence information and “fails to deliver it on demand to the officer or employee of the United States entitled to receive it” at risk of imprisonment for ten years on each count.

In an interview with Insider, national security law attorney Bradley Moss said Mr Biden’s lawyers “did exactly what you're supposed to do” if you discover documents bearing classification markings.

“When you find improperly stored classified documents, you immediately notify the government — and you turn it over immediately,” he said.

“The reason Donald Trump is in criminal jeopardy right now isn't just because of the documents being improperly stored. It was the obstruction — that is why it has gotten to the point it has, where we're looking at the real possibility of a criminal indictment”.