“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.”
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“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.””
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“”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.””
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“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.””
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“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”
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“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.”
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“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.”