Donald Trump indicted: Why former president’s classified documents case is different

Donald Trump
President Donald Trump walks into the Oval Office of the White House for a meeting with Mongolian President Khaltmaa Battulga, Wednesday, July 31, 2019, in Washington. (Evan Vucci/AP)

Donald Trump indicted: Why former president’s classified documents case is different

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A federal grand jury in Florida indicted former President Donald Trump on 37 charges related to classified government documents seized at his Florida estate, Mar-a-Lago.

Speculation increased in the days before the indictment, with the 2024 GOP front-runner commenting on being charged in special counsel Jack Smith‘s investigation.


Trump wrote on his Truth Social platform on Monday that “Joe Biden won’t be charged for anything,” adding that “crooked Hillary wasn’t even close to being charged,” referring to a 2016 investigation into Hillary Clinton’s private email server while she was secretary of state, but no criminal charges were brought against Clinton for her handling of classified information through emails.

More than 300 documents were recovered from Trump’s resort and home in 2022, leading to charges that were confirmed by Trump’s attorney, Jim Trusty, in an interview with CNN on Thursday evening. Trusty and John Rowley will no longer represent the former president in the documents case, Trump said on Friday.

However, classified documents were also found at former Vice President Mike Pence’s Indiana home in January. Documents were recovered from Biden’s former office in Washington, D.C., in November, and a second batch was discovered at his home in Delaware in January. Neither party has been charged in relation to the classified documents, so why has Trump been indicted for his classified documents?

Joe Biden

A separate special counsel is investigating Biden for his handling of confidential documents after he vacated the vice presidency. The president’s personal lawyers discovered classified documents from his two-term service at the Penn Biden Center in Washington, and his attorneys notified the National Archives and Records Administration on the same day of discovery and turned in the materials in November.

Another batch was found in Biden’s Delaware home, and Richard Sauber, special counsel to the president, said in January it was “a small number of documents with classified markings.”

The Justice Department then discovered more documents during the agency’s own search on Jan. 20.

Attorney General Merrick Garland appointed Robert Hur as special counsel to lead the Biden investigation, saying in a Jan. 12 press release that the DOJ is committed “to both independence and accountability in particularly sensitive matters.”

The investigation is ongoing and, through the Freedom of Information Act — which allows the public to access information regarding federal activity — records and documents can be found in the National Archives.

While Biden handed the classified documents over, Trump denied the documents seized from his Mar-a-Lago home were classified, arguing in a Truth Social post in August 2022 that “it was all declassified.”

When asked about the documents at the CNN town hall in May, Trump said he was within his rights to take the documents after leaving office: “You have the Presidential Records Act. I was there, and I took what I took, and it gets declassified.”

The Presidential Records Act “establishes that Presidential records automatically transfer into the legal custody of the Archivist as soon as the President leaves office,” confirming documents must be given to the National Archives at the end of the presidency, as stated in the act.

Mike Pence 

Pence, who launched his presidential bid for the Republican 2024 nomination this week, was under investigation for classified documents found in his home north of Indianapolis in January.

The Federal Bureau of Investigation and the National Security Division launched an investigation into Pence’s alleged mishandling of around a dozen records containing classified information.

“Pence immediately secured those documents in a locked safe pending further direction on proper handling from the National Archives,” Pence’s lawyer, Greg Jacob, wrote in a Jan. 18 letter to the National Archives. “Vice President Pence has directed his representatives to work with the National Archives to ensure their prompt and secure return.”

Jacob added in the January letter that Pence searched for records stored in his Indiana home “out of an abundance of caution” after press reports circulated regarding Biden’s possession of classified documents.

However, the DOJ said it will conclude its classified document investigation into Pence last week, saying “no criminal charges will be sought.”

The details from the DOJ’s investigation have yet to be released, but the bureau wrote to Pence’s lawyer, “Based on the results of that investigation, no criminal charges will be sought.”

The Trump 49-page indictment, which was released Friday afternoon, shows that he will face several obstruction-based charges, a key difference in the former president’s case. The indictment states Trump attempted to obstruct the FBI and grand jury investigations and hide his possession of classified documents by “suggesting that his attorney hide or destroy documents called for by the grand jury subpoena.”


While Biden is still being investigated, Pence was cleared and not charged with any obstruction of justice count for retaining documents.

Another major differing factor between Biden, Pence, and Trump’s cases is that the DOJ’s Office of Legal Counsel concluded that a president is immune from prosecution during his time in office, stemming from a memorandum issued in 1973 amid the Watergate scandal. The memorandum was restated in 2000 by the department, noting a “criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”

© 2023 Washington Examiner

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