Biden documents saga largely the same as Trump’s — with one key difference
Sarah Westwood
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As President Joe Biden’s mishandling of classified documents spirals into a scandal, his allies have insisted his case differs dramatically from a similar investigation into former President Donald Trump’s records retention.
Trump’s case represents a far graver offense, Biden’s allies say, because the former president held on to a higher volume of documents and, in their telling, attempted to evade inquiries from law enforcement.
But many aspects of the two classified records cases are fundamentally similar, despite a significant difference in the public relations campaign that each man’s team has waged.
“I don’t think they’re significantly different,” Andrew C. McCarthy, former prosecutor in the Southern District of New York and a senior fellow at the National Review Institute, told the Washington Examiner about the two cases.
“When you get down to brass tacks, it’s the same crime,” McCarthy said. “And as far as how the lawyers are handling it differently, Trump’s approach has been much more combative, and there’s also a disconnect and a very big difference in the two personalities here.”
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Biden has spoken far more carefully about the investigation in public. Aside from reading scripted remarks that shed little light on the situation, he has so far made only one candid quip: He confirmed that he stored some classified documents in a box near his prized Corvette.
Trump, on the other hand, has directed withering criticism at the Department of Justice and claimed to be the victim of a targeted attack.
“They could have had it anytime they wanted,” Trump wrote on Truth Social days after the FBI raid of his home, referring to the classified material agents took from Mar-a-Lago. “ALL THEY HAD TO DO IS ASK.”
Trump’s lawyers have also deployed a different, and more aggressive, defense strategy when facing a similar Justice Department investigation. His attorneys have argued that the material they did not voluntarily share with the Biden administration, on the two separate occasions they handed over documents before the raid, was declassified by Trump before he left office.
BOTH SPOKE WITH DOJ OFFICIALS EXTENSIVELY BEFORE THE FBI SEARCHES
Contrary to the widespread perception of Trump as having stonewalled investigators, the former president’s team worked with Justice Department officials for months before the FBI raided his home.
Trump’s representatives worked first with the National Archives to satisfy the agency’s request for documents that archivists believed Trump needed to return to the government. That process began in May 2021, four months after Trump left office, and continued until Trump’s team told the National Archives in December 2021 it had prepared at least a dozen boxes of records at Mar-a-Lago that the agency could come and retrieve.
When National Archives officials found classified documents among what ended up being the 15 boxes they received voluntarily from Mar-a-Lago, the agency alerted the Justice Department.
What followed was a back-and-forth between the Justice Department and Trump’s lawyers over whether the FBI should get access to the boxes that culminated in Biden’s White House intervening directly to grant the FBI access to the records in April.
By May 11, Trump’s lawyer had received a grand jury subpoena demanding him to return any classified documents that may remain at Mar-a-Lago.
Trump’s lawyer responded quickly and, in less than a month, invited FBI and Justice Department officials to meet him at Mar-a-Lago, where Trump’s representatives personally handed over 38 additional classified documents they had found, according to court documents.
Trump’s legal team also showed the FBI agents and Justice Department official the storage room where Trump’s remaining presidential documents were kept. That occurred on June 3, 2022.
So, by the time FBI agents raided the storage room in August, Trump’s team had had extensive conversations with the Justice Department and the FBI and had responded in person to the grand jury subpoena for documents.
Biden’s lawyers similarly worked with the FBI and Justice Department before FBI agents searched the president’s Wilmington home on Friday.
Biden’s lead personal attorney, Bob Bauer, has said the president’s legal team remained in regular contact with the Justice Department from the time law enforcement officials said they had opened an investigation of why classified documents surfaced in Biden’s private office.
The FBI investigation began on Nov. 9, one week after Biden’s personal lawyers told the National Archives they had found classified records in the Washington, D.C., private office.
Biden’s lawyers proactively told the Justice Department on Dec. 20 that they had discovered additional classified documents in the garage of Biden’s Wilmington, Delaware, home. The FBI traveled to Delaware and took custody of the documents at that time.
On Jan. 11, Biden’s attorneys told the Justice Department they found one page of classified material in a room adjacent to Biden’s garage in Wilmington and stopped searching. One day later — Jan. 12, just hours before Attorney General Merrick Garland announced the appointment of a special counsel — Biden’s attorneys called the Justice Department to say they found a third set of classified documents in Wilmington.
FBI agents searched the Wilmington home for more than 12 hours on Friday, Jan. 20, and found a fourth batch of classified records. By the time the search occurred, Biden’s attorneys had also worked extensively with the Justice Department.
Both FBI searches occurred after lawyers for both Trump and Biden acknowledged to the Justice Department that more classified documents remained in their respective private residences after initial sweeps.
But unlike in Trump’s case, the FBI did not obtain a warrant to search Biden’s private home and instead gave the Biden team notice to arrange what the Justice Department described as a “consensual” search.
BOTH FOLLOWED DOJ ORDERS FOR DOCUMENTS
Before the FBI showed up on the doorsteps of both Trump and Biden, the Justice Department had asked lawyers for both men to keep their hands off record stashes that could contain classified papers or to conduct searches for records only according to the agency’s instructions.
After Trump’s team voluntarily handed over the 15 boxes of documents to the Biden administration at the end of last year, and after Trump’s team personally showed FBI agents the storage room where more boxes of documents remained, the Department of Justice told Trump’s lawyer not to touch the boxes.
“Accordingly, we ask that the room at Mar-a-Lago where the documents had been stored be secured and that all of the boxes that were moved from the White House to Mar-a-Lago (along with any other items in that room) be preserved in that room in their current condition until further notice,” the Justice Department’s counsel wrote in a letter to Trump’s lawyer on June 8, 2022.
A top Justice Department official reportedly wrote an email to Trump’s lawyer soon after requesting that a more secure lock be placed on the door of the storage room; Trump’s team did so, prompting the former president to complain later that the FBI blasted through a lock they’d requested to access a room they’d asked him not to touch.
Similarly, Biden’s team conducted searches of the president’s private residence in close consultation with the Justice Department — a fact cited in multiple media reports as a reason why more than a month elapsed between the discovery of classified documents in Biden’s personal office and the discovery of more classified documents in his home.
“Biden’s aides sought to follow the Justice Department’s guidance, heeding its protocols for conducting searches and reporting additional discoveries,” the Washington Post reported in an exhaustive timeline of Biden’s document case.
That cooperative strategy meant that when Biden’s personal lawyers uncovered the second batch of classified documents in Biden’s garage on Dec. 20, they immediately stopped searching. Lawyers looking through Biden’s records at the Wilmington home did not have security clearances, so they called in a White House lawyer, Richard Sauber, who did.
When Biden’s personal lawyers found an additional page of classified material in the room off the garage in early January, the lawyers again left the page where it lay and contacted the Justice Department.
BOTH MIXED CLASSIFIED DOCUMENTS WITH PERSONAL PAPERS
Trump and Biden both stored classified documents from their time as president and vice president, respectively, around papers that were largely personal.
Among the boxes recovered from Mar-a-Lago were news clippings, dinner menus, and notes Trump had torn up after reading.
In Biden’s Washington, D.C., office where the first set of classified documents was discovered, the records stored nearby included plans for the funeral of Biden’s late son, Beau, and letters of condolence the family had received.
BOTH HAD MORE CLASSIFIED DOCUMENTS THAN THEY INITIALLY TOLD THE NATIONAL ARCHIVES
Lawyers for both Trump and Biden had to go back to the federal government multiple times to provide documents that they did not hand over initially.
Accusations of obstruction of justice in the Trump case come from critics who note that Trump’s team certified to the Justice Department last summer that it had turned over all classified records in its possession.
That’s accurate, according to the Trump legal team argument; anything marked classified that remained after the certification in June was declassified by Trump himself, and thus Trump’s lawyers had been equally cooperative, his team says.
But the Justice Department cited probable cause to believe Trump’s lawyers were not forthcoming when they gave the second batch, the envelope of 38 classified documents, to FBI agents last summer and swore that was the remainder of Trump’s classified material.
Biden’s team also had to return to the Justice Department multiple times to supply records that they did not discover when they first contacted the National Archives.
That has occurred at least four times, with a fifth batch surfacing during the FBI search of the Wilmington home on Friday.
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“With Biden, there’s not a pattern of obstructing law enforcement like there is with Trump,” McCarthy noted. “But on the other hand, with Biden, they had probable cause for a search warrant, and the fact that you have probable cause doesn’t mean you have to seek one — but it gives you a lot of leverage to negotiate.”
McCarthy, a former prosecutor, said most subjects of investigations cooperate with the government if they know they run the risk of facing charges if they don’t.
“You only consent to a search because you know if you didn’t consent, they have enough evidence to go to a court and get a warrant,” he said.