Biden’s Documents vs Trump’s
One of these is not like the other.
Loyola law professor and MSNBC columnist Jessica Levinson rightly notes that “Investigations into classified docs should leave Trump more worried than Biden.” It’s a point I made at the outset but she expands on it usefully.
There’s a line in an old song that goes “Lawyers dwell on small details.” It’s true. The law is all about details. From one perspective, two cases may appear similar, but depending on the details, they can be very different.
Classified documents were found at the offices and homes of former President Donald Trump and President Joe Biden from the time he was vice president. In November Attorney General Merrick Garland appointed Jack Smith as special counsel to lead the investigation into the presence of classified documents at Trump’s Mar-a-Lago residence. Thursday, after reports that classified documents from his vice presidency had been found at Biden’s home and office, Garland appointed Robert Hur as special counsel to investigate that matter.
So far, the stories look similar. Neither Biden nor Trump should have been in possession of classified documents after they left office. These are the people’s documents, not theirs.
But because the law concerns itself with details, not headlines, the similarities mostly stop there.
Politically, the slow-rolling disclosures of new tranches of Biden documents squirreled away in various locations looks bad and invites even nonpartisan observers to conclude They All Do It, So It’s No Big Deal. But legally, they’re very different matters.
As a former president, Trump might be indicted, but perhaps the most important reason Biden is unlikely to face indictment or criminal prosecution is he’s currently president. As we know all too well from the four years of the Trump administration, the Justice Department has a policy against indicting sitting presidents. An opinion issued by the Office of Legal Counsel, a division of the Justice Department, provides that charging the president with a crime would “unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
She expounds on this point a bit but it’s both obvious and the least interesting argument she makes. On the one hand, it’s true: Biden, as a sitting president, is less likely to be indicted than Trump, a private citizen. But that’s a mere technicality from where I sit.
Similarly, while I mostly agree with this point, I find it largely uninteresting:
The GOP now controls the House of Representatives, and we know members of that party have been raring to go to investigate and possibly impeach Biden. But impeaching Biden for possessing classified documents would be improper for two reasons. First, there is a good argument to be made that people can only be impeached for misconduct committed while in office. Biden’s retention of classified documents occurred after he left the vice presidency and before he assumed the presidency. Second, impeachment is only available when the subject of the impeachment has engaged in “treason, bribery, or other high crimes and misdemeanors.”
First off, the House can arguably impeach Biden for any damn thing it sets its mind to. Second, and more importantly, it’s completely irrelevant because there aren’t 67 votes in the Senate to convict.
To me, the important thing isn’t the immediate consequences that Biden and Trump are likely to face but rather the vast differences in the underlying conduct.
For reasons discussed below, Biden’s conduct is unlikely to be characterized as criminal, even if he weren’t the sitting president. There is also plenty of reason to believe that Trump will or at least ought to be. Consider what each did after being alerted that he might be in possession of classified documents.
Trump reportedly ignored multiple requests from the National Archives for those documents, and after a Trump attorney’s false assertion to the Justice Department that all the requested documents at Trump’s Mar-a-Lago residence had been returned, the Justice Department was ultimately forced to obtain and execute a search warrant. Prosecutors have also argued that Trump’s team tried to hide the documents found at Mar-a-Lago before and after the subpoena was issued.
Reportedly, in Biden’s case, the White House counsel alerted the National Archives as soon as classified documents were found at Biden’s former office in November. The National Archives didn’t ask; Biden’s team offered.
Then that team searched for any additional documents that belonged to the government. It found additional files at Biden’s residence in December and more last week, before the White House announced Saturday that additional documents had been found Thursday. The Biden story is one of cooperation, not obstruction.
This was my initial impression of the brouhaha and one that hasn’t waivered as more documents were discovered. Yes, it’s embarrassing and serves to neutralize neutral public interest in Trump’s misconduct. But Biden and his team are conducting themselves in precisely the way you would want honorable citizens, let alone the leader of the Executive Branch of government, to behave under the circumstances whereas Trump and his team did just the opposite. That’s huge (or, if you prefer, yuuuuuuge).
Also, the number of documents found is vastly different. While there were hundreds of classified documents found at Mar-a-Lago, CBS News’ initial report of classified documents found at Biden’s former office cited sources who said there were about 10 such documents. It’s unclear how many classified documents were later found.
Let’s be clear: A single out-of-place classified document is one too many. But the difference in scale does matter. It matters because it can help show whether the taking of the documents was inadvertent, a consequence of sloppy record keeping or willful misconduct.
Exactly right.
Facebook friends with military backgrounds continue to rail that either man had any classified documents at all and argue that we would throw the book at a lower-ranking person who had done the same. And they’re right. But the fact of the matter, as we’ve constantly been reminded over the years, senior officials so routinely handle classified documents as part of their briefing and decision-making process that they operate under a completely different set of rules. [For a slightly different take that I fundamentally agree with, see commenter @Andy below.]
There’s simply no reason, given what we know now, to think Biden intentionally took documents, much less that he did so with nefarious intent. That’s not the case with Trump.
And what did each man do with the documents? While Trump, according to a letter from the National Archives, appears to have mutilated some of the documents found at Mar-a-Lago, there are no reports that any documents found in Biden’s possession had been harmed, destroyed or altered.
That’s a massive difference and one honest observers should care about. Whether it’s one that ordinary citizens will recognize remains to be seen.
A CNN analysis by Kevin Liptak, Evan Perez, Phil Mattingly and Marshall Cohen makes similar points and even has this handy-dandy visual aid:
These differences could have significant legal consequences. To rise to the level of criminal culpability, prosecutors will likely need to show knowledge or willful intent to take and retain government property. The federal criminal statutes that Trump could be charged with violating require some level of scienter, which in plain language means knowledge about the nature of one’s acts. Federal law, for example, makes it illegal to knowingly or wilfully take or keep classified documents. Given the evidence thus far, and Biden’s apparent surprise that classified documents were found at his former office and current home, that required knowledge is likely lacking. Trump, by contrast, alternately claimed that the documents were planted, or that he declassified the documents and that they were covered by executive privilege. None of these claims, it should be noted, appears to be based on reality and, hence, would not rebut a scienter requirement.
There’s a perspective technique known as anamorphosis, which can leave the viewer with a distorted image of a subject when seen from a certain angle. But by moving away or changing one’s perspective, the distortion disappears, and the image appears clear. These two cases require us to view them from the proper perspective to see the reality.
According to what we know now, Trump faces the very real threat of criminal prosecution. Biden does not, and although part of that is because of the Justice Department’s policy against indicting sitting presidents, it’s unlikely he’d be charged even if he was not in the Oval Office.
At the end of the day, I’m skeptical that either man will face criminal consequences for their actions. But what actually interests me is that only one of them should.
![[Update] Analysis of NARA's Letter to Former President Trump](https://otb.cachefly.net/wp-content/uploads/2018/02/top-secret-stamp-magnifying-glass-clearance-large-512x256.jpg)
I was going to write a similar post yesterday, and so will share this Reuters story I was going to include:FBI found more than 11,000 government records at Trump’s Florida
The scope and irresponsible handling of documents by Trump is just staggering and simply not comparable to what we are seeing from the Biden side.
Two observations: Given that a huge percentage of the documents senior governmental officials use, or may use, are classified, and given that the rules mean it is easier to deal with them as printouts than electronically, and given that a senior government official is virtually always “on duty” no matter whether they are at home or in some auxiliary location, and given that they have staff (in the case of the President, that staff is dozens of people) that ensure they have ready access to any documents they might need regardless of where they are at, I’d be willing to bet that a thorough search of any recent senior official’s home/private office/etc would turn up classified documents. When we read that a former President has turned over hundreds of thousands of documents to their Presidential Library, the odds that at least some of them were classified seems quite high. Since the Libraries work closely with the National Archives it would be interesting to see how many fall into that category for each of the Presidents.
My second observation is more a cry of inevitable frustration as the Repubs will almost certainly be successful in turning some Dems and Independents against Biden not for what he actually did, but because “dammit, he KNOWS people are looking closely at him and yet he was so still so careless as to do this. I’m going to spend all my time railing against Biden to my friends and acquaintances now”. There is always, and I mean always, one thing or a hundred that political opponents throw up against the wall in the hopes that it will catch on with the media. If your standard is that your guy must be Ceasar’s wife, then you are going to get led around by the nose by the Republicans.
Objective assessments don’t matter. Facts don’t matter. The national interest doesn’t matter. Benghazi! Desktop! We are going to hear investigation after investigation. We are going to hear more investigations than recounts of Pennsylvania 2020 votes.
@MarkedMan:
This strikes me as almost certainly correct.
@Jax: [Raises hand]
@MarkedMan: Whoa! Jax’s comment disappeared!
@MarkedMan: I moved it to the Open Forum. Issue should be resolved now, in any case.
@James Joyner: The awesome powers of a SysAdmin. We tremble before you.
There’s a definite lower bar for Benito than for Biden. Not just among the GQP, where it’s expected, but in the media and among the public at large.
We expect El Cheeto to engage in criminal actions, openly or not, and to inadvertently admit to them while he thinks he’s issuing a strong denial. And after staging a coup to overthrow the US government, with the lower bar stealing government top secret documents doesn’t seem like too much of a much, right?
I don’t care what he’s prosecuted and, hopefully, convicted for, but we need to put Benito behind bars where he belongs.
I will just point out again that the most important story here should be about the lack of security at the WH and among senior officials.
That’s really a BS excuse. Intelligence personnel work with classified documents much more routinely than policymakers and yet can avoid mistakenly taking them home.
No, the problem here is lax WH security, especially during Presidential transitions, combined with the general “the rules do not apply to me” attitude that senior leaders often have.
What Biden should do is take steps to ensure everyone in the WH follow the security directives that he and other Presidents have promulgated via EO, or at a minimum, take steps to greatly reduce the chances of documents walking. The WH should be much less reliant on paper documents, and if that requires turning most of the WH and West Wing into a SCIF, then so be it.
Secondly, I agree with your characterizations about the differences between Trump and Biden’s conduct after the documents were discovered. The legal differences are quite large, although things may change since both investigations are ongoing.
The political aspect is another matter. It may not be fair – politics is not fair – but it’s perfectly legitimate for Biden’s critics to point out how his claims of taking classified seriously and criticism of Trump as irresponsible have now come home to roost. If one is going to take the moral high road, charges of hypocrisy are inevitable if one doesn’t live up to that standard. If the roles were reversed, Democrats would certainly be pointing this out. And personally, as a lukewarm Biden supporter, I think it is an embarrassing own-goal for him which wasn’t helped by his locked garage comments.
I think this should be an opportunity for Biden to be proactive, as I suggested above, and order a review of WH and transition security practices, and promise to implement the recommendations of that review. That would be, IMO, better for him politically than circling the wagons and also would address what is obviously a very real problem.
In the Marines no wanted to be the Sh*tty Little Jobs Officer (SLJO). One of the SLJs was checking classified materials in and out and being accountable for the security of the classified inventory–including making sure all materials were checked in.
I haven’t yet read an article where the people in charge of the people in charge of the classified materials are being held accountable for not notifying the chain of command when materials were not returned.
@Andy:
Oh, we’re in total agreement. My tendency in these things, especially where a pattern repeats itself over a long period with no variation between parties and personalities (again, with the notable exception of Trump), is to see them as Just The Way It Is. But you’re right that it shouldn’t be this way.
@Andy: While I agree that lax security plays a role, I think this comment is applying an unrealistic standard to the unique circumstances of senior government officials:
Presidents, Vice Presidents and Cabinet members work everywhere they stay. Hell, I wouldn’t be surprised if VP Biden had 3 or more locations with SCIFs. They have boxes and boxes full of written documents stored on the premises of any place they could spend a night, and if they are likely to spend more than one night there, those stashes could become semi-permanent.
I think a big part of the problem is that at the end of such an official’s term in office we ask them to decide what belongs to them and what is government property and leave it to their initiative to return everything that falls into the latter category. Given this reality it is almost inevitable that stuff will get missed. And we probably end up with grocery lists and Wordle attempts mixed in with the government stuff.
As I remember it, the norm is for a Presidential Library to get built and only then does the President turn their documents over to them. During the whole Trump thing, when he was accusing Bush and Clinton of also mishandling documents, it sure sounded like they were in storage under control of the ex-Presidents until they were handed over, at which point the National Archives would work with the Library staff to determine how they would be dispositioned.
@MarkedMan:
I’m sorry, but it’s not that difficult to go through boxes to ensure they don’t have classified, especially when you have a lot of staff/minions to do the work for you. There really is no excuse IMO. And it would not be difficult for the President to require that everything be searched before leaving the WH, or to take many other obvious measures like reducing hard-copy classified, and serializing and tracking it for accountability.
People higher up should abide by the same rules as anyone else, or should have clearly carved out exceptions. Otherwise, it’s often those lower down who get left holding the bag for the higher-up’s carelessness or whims.
When the company switched from paper gasoline vouchers to electronic payments, my boss decided he would not bother with that. So guess who had to find money in her petty cash to cover his gas expenditures? And fight with accounting over trying to expense gas regularly when there was a corporate policy limiting the practice?
Now, I’m sure not just the president or VP, but a whole host of cabinet officials and high-ranking military officers get to play by different rules with classified documents. For instance, if document X requires being signed for when taken and being logged when returned, I’m sure some flunky get stuck having their name attached to the process, and held responsible when their boss does not return the document or even misplaces it.
@Kathy:
That would be the typical Trump excuse/response: “Me? Not my fault. Minion X was supposed to take care of that.”
Or, as he said of the slow rate of Covid testing: “I don’t take responsibility at all.”
@Andy:
Those all seem like good ideas although I’m not sure about the practicality of reducing hard-copy classified, given what I understand to be the limitations on computers, much less tablets, that contain classified information.
A president has a staff whose job it is to have on hand anything they think he might need or want, and in the case of Obama that amounted to millions of documents, so I don’t think it is as simple as “searching through boxes”. Now in Obama’s case the reason we know there were millions of documents is because he turned them all over to the National Archives to be held until his library is ready and then his staff and presumably NA staff will go through them to determine what should go where.
I wonder if the best solution would be to have NA staffers involved in the process all along the way. The only time documents would be out of their control is when they are actually in the hands of the President or senior staff. One difficult with this or any other scheme would be that new documents are created by the hundreds per day by his staff, each of which may or may not be classified, and some of which are related to personal or political matters that NA staff shouldn’t be controlling.
@MarkedMan:
Jesus Christ, that’s all one sentence. 😉
Given that this is the case, we should be routinely checking, and that should just be an expectation of the job. Or a perk, “free office organization on departure.”
@MarkedMan:
Most of the rest of the government has moved away from hard-copy documents because of the problems that we are seeing at the WH. Maybe there are factors I’m unaware of, but I don’t see anything preventing the WH from making more efforts in this area.
Security always comes with some inconvenience and must be balanced with other factors. But the minimum of standard of checking everything that leaves the White House, particularly at transition time, really isn’t that difficult. There are tens of thousands of cleared people in the DC area – it’s not a big deal to bring a couple of hundred in to assist with classified security during a transition to go through boxes.
And at this point, I hope the political incentives for better security have changed.