Trump's Alleged Defiance and Deceit Distinguish His Handling of Secrets From Biden's

If Joe Biden will not be prosecuted for mishandling classified material, why does Donald Trump face 40 felony charges based on conduct that looks broadly similar? It is a question that Trump's supporters were bound to ask after Special Counsel Robert Hur, formerly a Trump-appointed U.S. attorney, released his findings about Biden last Thursday. But Hur's report includes important details that plausibly explain the contrasting outcomes in these two cases. Although Biden's embarrassingly hypocritical lapses belie his avowed concern about safeguarding material that could compromise national security, the evidence of criminal intent is much stronger in Trump's case.

When Trump left the White House in January 2021, he took thousands of presidential records, including more than 300 marked as classified. The superseding indictment released by Special Counsel Jack Smith last July lists 32 of the latter, each of which is the basis for a charge under 18 USC 793(e). That provision applies to someone who "willfully retains" national defense information when he "has reason to believe" it "could be used to the injury of the United States or to the advantage of any foreign nation."

Hur's report focuses on two types of records that Biden retained after serving as vice president: 1) "documents about military and foreign policy in Afghanistan" that were marked as classified and 2) "notebooks containing Mr. Biden's handwritten entries about issues of national security and foreign policy implicating sensitive intelligence sources and methods." FBI agents found both types of material in "the garage, offices, and basement den" of Biden's home in Wilmington, Delaware.

"Contemporaneous evidence suggests that when Mr. Biden left office in 2017, he believed he was allowed to keep the notebooks in his home," Hur writes. Biden took the same position in an interview with Hur's office, saying "his notebooks are 'my property' and that 'every president before me has done the exact same thing,' that is, kept handwritten classified materials after leaving office." In particular, he cited "the diaries that President Reagan kept in his private home after leaving office, noting that they included classified information."

Hur does not agree with Biden's understanding of the law. "If this is what Mr. Biden thought, we believe he was mistaken about what the law permits," he says. But he adds that Biden's position "finds some support in historical practice." The "clearest example," he says, is "President Reagan, who left the White House in 1989 with eight years' worth of handwritten diaries, which he appears to have kept at his California home even though they contained Top Secret information."

Yet as far as Hur could tell, neither the Justice Department nor any other federal agency took steps to "investigate Mr. Reagan for mishandling classified information or to retrieve or secure his diaries." Hur concludes that "most jurors would likely find evidence of this precedent and Mr. Biden's claimed reliance on it, which we expect would be admitted at trial, to be compelling evidence that Mr. Biden did not act willfully."

What about the Afghanistan documents that were marked as classified? The strongest evidence of Biden's intent regarding them is a remark he made during a recorded conversation with his ghostwriter in February 2017, the month after he left office. Discussing a 2009 memo he had written in opposition to a troop surge in Afghanistan, Biden noted that he had "just found all the classified stuff downstairs." At the time, Biden was renting a home in Virginia, which he kept until 2019. Assuming he was talking about the Afghanistan documents that the FBI later found in Wilmington, which is likely but not certain, that comment shows Biden knew the material was classified. But Hur notes defenses Biden could raise against a charge based on that admission.

"Mr. Biden could have found the classified Afghanistan documents at his Virginia home in 2017 and then forgotten about them soon after," Hur writes. "When Mr. Biden told his ghostwriter about finding 'all the classified stuff downstairs,' his tone was matter-of-fact. For a person who had viewed classified documents nearly every day for eight years as vice president, including regularly in his home, finding classified documents at home less than a month after leaving office could have been an unremarkable and forgettable event. Notably, the classified Afghanistan documents did not come up again in Mr. Biden's dozens of hours of recorded conversations with the ghostwriter, or in his book. And the place where the Afghanistan documents were eventually found in Mr. Biden's Delaware garage—in a badly damaged box surrounded by household detritus—suggests the documents might have been forgotten."

That explanation, Hur says, is reinforced by the fact that Biden's memory "was significantly limited, both during his recorded interviews with the ghostwriter in 2017" and "in his interview with our office in 2023." Hur alludes to Biden's difficulty in remembering things several times, saying a jury might view him as "a sympathetic, well-meaning, elderly man with a poor memory." Although that characterization is politically damaging, it would be extenuating in the context of a charge under 18 USC 793(e).

Hur notes that Biden's "cooperation with our investigation, including by reporting to the government that the Afghanistan documents were in his Delaware garage, will likely convince some jurors that he made an innocent mistake, rather than acting willfully—that is, with intent to break the law—as the statute requires." The documents "could have been stored, by mistake and without his knowledge, at his Delaware home since the time he was vice president, as were other classified documents recovered during our investigation."

One of Biden's notebooks, marked as "Af/Pak 1," contained his handwritten 2009 memo on the troop surge. Biden "initially said he was not aware that he had kept the Thanksgiving memo after his vice presidency" but later conceded that "I guess I wanted to hang onto it for posterity's sake." Two other notebooks contained documents marked as classified, but Hur concludes that "the evidence does not suggest either that Mr. Biden retained the classified documents inside them willfully, or that the documents contain national defense information."

Hur also discusses "nine documents with classification markings" that were found in Biden's office at the Penn Biden Center for Diplomacy and Global Engagement, a think tank in Washington, D.C. At the same location, the FBI also found "a set of handwritten notes" that were "potentially classified."

Hur says "there is insufficient evidence to prove beyond a reasonable doubt that Mr. Biden intentionally retained the classified documents" about the Iran nuclear deal that were found in an "eyes only" envelope. Rather, "the evidence supports an innocent explanation for the unauthorized retention of those documents." Biden and his staff "appear to have eventually forgotten about" that envelope, which was "unwittingly moved…out of the West Wing at the end of the administration." Hur likewise found "insufficient evidence to support charging Mr. Biden for the retention of the other marked classified documents recovered from the Penn Biden Center."

Finally, Hur discusses "just over a dozen" classified documents that were found at the University of Delaware among Biden's papers from his time as a senator. "Almost all of these documents predate the Senate's establishment of rules for the tracking and handling of classified information," Hur writes. "The evidence does not suggest that Mr. Biden willfully retained these documents. Rather, they appear to have been included in his large collection of Senate papers by mistake."

In addition to Biden's notebooks, Hur lists fewer than 100 "recovered documents" that either were marked as classified or included classified information. That represents about a third of the classified documents that the FBI says Trump took with him when he left the White House. While Biden's documents span decades, Trump's trove came from his single term as president. But when it comes to criminal liability, the raw numbers are less important than how the retention of sensitive material came to light and how Biden and Trump responded to that discovery.

"With one exception, there is no record of the Department of Justice prosecuting a former president or vice president for mishandling classified documents from his own administration," Hur notes. "The exception is former President Trump." And while "it is not our role to assess the criminal charges pending against Mr. Trump," he says, there are "several material distinctions between Mr. Trump's case and Mr. Biden's."

Notably, those "material distinctions" have nothing to do with Trump's authority as president to declassify documents—a point frequently raised by his defenders. Unlike Trump, they say, Biden had no such authority as vice president. But whatever you make of Trump's claim that the documents he took were "automatically declassified," whether through a "standing order" or simply "by thinking about it," it is a red herring in the context of charges under 18 USC 793(e), which does not refer to classification at all. The relevant questions under that provision are whether the information in those documents was potentially damaging to national security, whether Trump should have recognized that, and whether he nevertheless "willfully" retained them.

In any case, the charges against Trump go beyond that statute. Unlike "the evidence involving Mr. Biden," Hur writes, "the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts. Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it."

That alleged conduct underlies eight additional felony charges against Trump. "In contrast," Hur writes, "Mr. Biden turned in classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations including his homes, sat for a voluntary interview, and in other ways cooperated with the investigation." Trump's alleged defiance and deceit, in short, distinguish his conduct from Biden's: They suggest that Trump retained national defense information "willfully," as required for a conviction under 18 USC 793(e), and that he committed additional crimes to cover up the underlying offense.

Notwithstanding these significant differences, there is no disputing that Biden's carelessness blatantly contradicts his criticism of Trump's "totally irresponsible" behavior. "Asked about reports that former President Trump had kept classified documents at his own home," Hur notes, "Mr. Biden wondered how 'anyone could be that irresponsible' and voiced concern about '[w]hat data was in there that may compromise sources and methods.'"

Biden made those comments in a 60 Minutes interview about a month after the FBI searched Mar-a-Lago, where it found more than 100 classified documents that Trump had kept after assuring the Justice Department that he had returned everything in that category. Two months later, six days before the midterm elections, Biden's lawyers found "a small number of documents with classified markings" at his think tank office. The White House did not acknowledge that discovery until the following January, and thus began a series of revelations that expanded the number of searched locations and the number of retrieved documents.

"We found a handful of documents were filed in the wrong place," Biden said in January 2023, taking refuge in the passive voice. "I think you're going to find there's nothing there." The next day, the FBI found additional classified documents at his house.

Hur plausibly concluded that criminal charges against Biden were not appropriate because there was insufficient evidence that he "willfully" retained documents he was not supposed to have. But that does not let Biden off the hook for repeatedly violating the standard of care that he himself insists is essential to protecting national security.