Biden now has his own classified documents problem. Here’s how it compares to Trump’s.

President Joe Biden looks on during a welcome ceremony as part of the ‘2023 North American Leaders’ Summit at Palacio Nacional on January 09, 2023 in Mexico City, Mexico.
President Joe Biden looks on during a welcome ceremony as part of the 2023 North American Leaders’ Summit at Palacio Nacional on January 9, 2023, in Mexico City, Mexico. | Hector Vivas/Getty Images

And what impact it might have on the Trump investigation.

Just as former President Donald Trump is in the midst of investigation and facing possible indictment for keeping classified documents at Mar-a-Lago after he left office, news has broken that classified documents from President Joe Biden’s time as vice president were found at the University of Pennsylvania center set up for Biden in his time out of office, and at his home in Wilmington, Delaware.

There were 10 classified documents at the Penn Biden Center, among them Obama-era “intelligence memos and briefing materials that covered topics including Ukraine, Iran and the United Kingdom,” CNN reported, citing a source familiar with the matter. The White House said in a statement Monday that Biden’s personal attorneys discovered the documents in a locked closet there in November 2022. They then searched other locations and found a “small number” of additional classified records in a storage space at Biden’s residence in Wilmington, per another White House statement Thursday.

Unlike Trump, who refused repeated government requests to return his own, larger set of documents, Biden’s team returned them to the government without being asked. But that still leaves the question of how and why they got there in the first place.

Attorney General Merrick Garland has tasked John Lausch, a US attorney based in Chicago — and a Trump appointee — with investigating the Biden matter further, and determining whether to recommend a special counsel be appointed.

In theory, this investigation should proceed entirely separately from special counsel Jack Smith’s investigation into the documents at Mar-a-Lago. Practically, though, politics may intrude. For months, journalists covering the Trump investigation have reported on some skepticism within the FBI about whether Trump’s behavior merits indictment. This news adds pressure to ensure that any case brought by the DOJ against Trump is truly bulletproof.

The Biden documents investigation, briefly explained

Soon after Trump took office in 2017, the University of Pennsylvania announced that former Vice President Joe Biden would lead “a new center focused principally on diplomacy, foreign policy, and national security” — the Penn Biden Center for Diplomacy and Global Engagement. The center secured office space in Washington, DC, near the Capitol and opened in 2018.

According to an intern interviewed by UPenn’s student newspaper, the Daily Pennsylvanian, about 15 people worked there early that year, on matters such as speechwriting for Biden and helping him arrange public conversations with former world leaders to be held on Penn’s campus. The American Prospect also interviewed an intern, who said that Biden had his own office but “was never there.” Longtime Biden aides (and current administration officials) Steve Ricchetti and Tony Blinken ran the center at various points. But Biden took a leave of absence from the center once he announced his presidential campaign in April 2019, and did not return.

Then, in November 2022, according to a statement by White House attorney Richard Sauber, Biden’s personal attorneys were preparing to vacate the center’s office space, when they found “what appear to be Obama-Biden administration records” in a locked closet, “including a small number of documents with classified markings.” Per Sauber, Biden’s team notified the National Archives of the discovery that same day and gave back the documents the next morning.

As to what the documents were, a source told CNN’s Jamie Gangel, Marshall Cohen, and Evan Perez that there were 10 documents with dates between 2013 and 2016, and that they included “US intelligence memos and briefing materials that covered topics including Ukraine, Iran and the United Kingdom.” Personal Biden family documents dealing with such matters as Beau Biden’s funeral were also in those boxes, per CNN’s source, and some were in “an envelope with markings indicating they were the former vice president’s personal documents.”

Biden’s team subsequently searched “other locations where files from his Vice-Presidential office might have been shipped in the course of the 2017 transition,” per another statement by Sauber, and found “a small number” of additional records at Biden’s residence in Wilmington, Delaware. Most of these were in storage space in the garage, and one page was with stored materials in an adjacent room, according to the statement.

So at this point there are a variety of possible explanations, from benign to less benign, depending on what exactly the documents are, how they got there, and evidence of Biden’s personal involvement. But the early reports on the Penn Biden Center documents suggest they deal with intelligence about politically sensitive countries.

Biden said on Tuesday that he was “surprised to learn that there were any government records that were taken there to that office” and that he did not know what they were. But Garland in November asked US Attorney Lausch to investigate this further. Lausch was a Trump appointee, but both Democratic senators from Illinois previously asked Biden to keep him in the US attorney post so he could complete ongoing investigations.

News of this situation has only just become public, and so far there hasn’t been reporting about whether Justice Department investigators think there might have been criminal lawbreaking. So right now, we’re still missing many facts about what happened and have only speculation to go on for much of it.

The Trump Mar-a-Lago documents investigation, briefly explained

The Trump documents controversy, on the other hand, began when the National Archives realized, a few months after Trump left office, that various documents from his administration that should be archived under the Presidential Records Act were missing. A lengthy back-and-forth ensued: Trump eventually returned some boxes that contained classified material, the Archives thought he was still holding some back and asked the FBI to get involved, and Trump appeared to defy a grand jury subpoena to turn over the documents.

So in August, the FBI got a warrant to search Mar-a-Lago, and they found dozens more documents with classified markings there, per prosecutors. We still don’t know exactly what was in those documents — that’s a bit of a problem with publicly assessing the strength of cases like this, since the information remains classified.

But the Washington Post reported that some documents had “highly sensitive intelligence regarding Iran and China,” including a description of Iran’s missile programs, and prosecutors have expressed concern that the information could jeopardize human intelligence sources.

Yet reports have suggested the DOJ prosecutors and FBI agents working on this investigation are not in full agreement about the strength of the case.

According to a Washington Post report in December, the FBI initially wasn’t sure it wanted to take up the case at all, and some agents “weren’t certain” they had probable cause for a search. And back in October, Bloomberg News reported that some “internal critics” in the FBI were questioning why Trump would be charged when Hillary Clinton wasn’t in her own classified information investigation. (Clinton had some classified information in email chains sent to her personal email account that she had used for work; Trump had paper documents in boxes at Mar-a-Lago.)

Furthermore, another Washington Post story suggests that the more ominous and speculative theories about Trump’s motives in keeping classified documents weren’t founded, in investigators’ eyes. They’ve come to believe, instead, that his motive was “largely his ego and a desire to hold on to the materials as trophies or mementos.”

That would not get him off the hook for violating classified information law, but it’s certainly less of a clear-cut threat to national security than, say, the attempted selling of documents would be.

The differences between the two cases so far

There is a core similarity here in that classified documents were found at both the Penn Biden Center and Mar-a-Lago. There are also many differences, as well as other issues where we lack sufficient information to know what’s similar and different:

  • There were purportedly 10 documents with classified markings at the Penn Biden Center and a “small number” at Biden’s Wilmington residence; over 300 were at Mar-a-Lago.
  • Some of the Mar-a-Lago documents were reportedly very sensitive, involving intelligence about Iran and China. Some of the Biden Center documents were intelligence briefing materials about politically sensitive countries like Iran and Ukraine.
  • Biden’s team claims to have returned the documents as soon as they discovered them, volunteering them to the National Archives without being asked. Trump, when asked by the Archives to return missing documents, gave back some but fought hard against returning others, including reportedly ordering some boxes moved to hide them from visiting government officials.
  • Trump insisted the classified documents be kept at Mar-a-Lago. Biden’s level of involvement in keeping the documents is unclear, but they were reportedly found among other personal documents of his.
  • Investigators believe Trump’s motive in retaining the documents was his “ego,” while it’s still unclear how the Biden Center documents got there.

Prosecutors will weigh all these topics in determining whether to bring charges. But the politics will be tough to avoid, too. There were already internal skeptics of the Trump case before the Biden news broke, and they were already going to have powerful subpoena-equipped allies in the GOP-led House of Representatives. Now they will surely be more active in criticizing any perceived double standard — and Garland and Smith may well think even harder before charging Trump.

Update, January 12, 11 am ET: This story was originally published on January 10 and has been updated to include the White House disclosure Thursday that additional documents were found at Biden’s Wilmington residence.

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