“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.”
“”The government tried for over a year, quietly and with respect, to get them back, which was essential that they do, and he jerked them around,” Barr said. Trump remained recalcitrant even when he faced a federal subpoena seeking all the documents with classification markings stored at Mar-a-Lago.
“He didn’t raise any legal arguments,” Barr noted. Instead, according to the indictment, “he engaged in a course of deceitful conduct” aimed at hiding records covered by the subpoena. “If those allegations are true,” Barr said, Trump’s conduct was “outrageous” and “a clear crime.”
Barr called the evidence supporting the charges against Trump, which include obstruction of justice and willful retention of national defense information, “very strong,” noting that much of it “comes from his own lawyers.” Trump lawyer Evan Corcoran’s notes, for example, indicate that his client was inclined to defy the subpoena.
Consistent with that impression, Trump had boxes moved out of a Mar-a-Lago storage room before Corcoran could search them for relevant documents. Barr said he also believes Trump lied to the Justice Department by averring that he had fully complied with the subpoena—another crime listed in the indictment.”
“An indictment..alleges that Trump, with the help of his body man Walt Nauta, flouted a subpoena requiring him to surrender highly sensitive documents that he kept in unsecured locations at his Mar-a-Lago residence in Florida — and that the men concealed this from federal officials as well as Trump’s own attorneys. The documents allegedly contained national defense information, including plans to attack an unidentified foreign country, and US nuclear weapons capabilities.”
“None of those figures ignored a subpoena to turn over classified material concerning highly sensitive matters of national security and then sought to conceal it from federal officials and their own attorneys, as is alleged of Trump. And in fact, history suggests that if Trump complied with that request, as some of his peers did, prosecutors may not have pressed charges.
The case against Trump is not so much about the fact that he retained documents he had no right to keep — but that he allegedly did so knowingly and brazenly defying the federal government while putting US interests at risk. That puts Trump in a class of his own.”
“WHAT SEPARATES THE CLINTON AND TRUMP CASES?
A lot, but two important differences are in willfulness and obstruction.
In an otherwise harshly critical assessment in which he condemned Clinton’s email practices as “extremely careless,” then-FBI Director James Comey announced that investigators had found no clear evidence that Clinton or her aides had intended to break laws governing classified information.
As a result, he said, “no reasonable prosecutor” would move forward with a case. The relevant Espionage Act cases brought by the Justice Department over the past century, Comey said, all involved factors including efforts to obstruct justice, willful mishandling of classified documents and indications of disloyalty to the U.S. None of those factors existed in the Clinton investigation, he said.
That’s in contrast to the allegations against Trump, who prosecutors say was involved in the packing of boxes to go to Mar-a-Lago and then actively took steps to conceal classified documents from investigators.
The indictment accuses him, for instance, of suggesting that a lawyer hide documents demanded by a Justice Department subpoena or falsely represent that all requested records had been turned over, even though more than 100 remained in the house.
The indictment repeatedly cites Trump’s own words against him to make the case that he understood what he was doing and what the law did and did not permit him to do. It describes a July 2021 meeting at his golf club in Bedminster, New Jersey, which he showed off a Pentagon “plan of attack” to people without security clearances to view the material and proclaimed that “as president, I could have declassified it.”
“Now I can’t, you know, but this is still a secret,” the indictment quotes him as saying.
That conversation, captured by an audio recording, is likely to be a powerful piece of evidence to the extent that it undercuts Trump’s oft-repeated claims that he had declassified the documents he brought with him to Mar-a-Lago.”
“More than 100 classified documents relating to Ukraine, China, the Middle East, the Pacific, and terrorism are now believed to be in the public domain after they were posted in an obscure internet forum last month.
It comes after White House officials said they were investigating the appearance of highly classified briefing documents related to Ukraine on Twitter on Thursday.
The US Department of Justice said it had launched an investigation into the leak.
American officials said Russia or pro-Russian elements were likely behind the leak, but did not give further details.”
“President Biden still isn’t what you’d call popular, but he’s closer to popular than he’s been in some time. On Jan. 11, Biden hit a 44.1 percent approval rating in FiveThirtyEight’s average — his highest mark since October 2021. That was 3 percentage points higher than it was on Nov. 9, which isn’t a huge increase in the grand scheme of things, but in this polarized age where any movement in the president’s approval rating is rare, it’s a veritable Bidenaissance.
This is the part of the story where you expect me to explain why this is happening. Which is understandable, except it’s impossible to know for sure what’s behind this shift. One leading theory, though: It’s because inflation has been slowing down. Prices in December 2022 were just 6.5 percent higher than they were in December 2021, which was the lowest inflation rate in over a year. Gas prices, another highly visible metric of the strain on Americans’ wallets, also plummeted from an average of $3.80 per gallon in November to $3.32 per gallon in December. These seem like pretty compelling explanations, considering how closely Biden’s approval rating was tied to the inflation rate and gas prices last year.”
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“But is Biden’s luck about to run out? The discovery of a handful of classified documents from the Penn Biden Center and Biden’s Delaware home has generated arguably the first bad news story for Biden in months, and it’s fair to wonder whether it will reverse — or at least halt — his miniature political comeback. The few polls that have been conducted since these revelations suggest that Americans think Biden acted badly, and that could be dragging down his approval rating.”
“In addition to the “small number” of classified documents in President Joe Biden’s former think tank office, it turns out, he had a “small number” in the garage of his house in Wilmington, Delaware, plus one more in a room adjacent to the garage.* These were Obama administration records that Biden came across during his time as vice president, and they were definitely not supposed to be in those locations. What had initially seemed like a single lapse now looks like a pattern of carelessness, which creates several problems for Biden and the Justice Department.
First, Biden is no longer in a position to criticize Donald Trump’s “totally irresponsible” handling of sensitive material that he retained when he left office. Second, the delay in acknowledging Biden’s retention of classified records and obfuscation of its scope look like blatant attempts to minimize the political fallout. Third, a criminal prosecution of Trump for his handling of the government documents he took to Mar-a-Lago, which was always an iffy proposition, now seems doomed for political as well as legal reasons.
That is not to say there are no meaningful differences between what Trump did and what Biden did. Based on what we know so far, Trump’s stash, which included 325 classified documents along with thousands of unclassified government records, was much larger than Biden’s. And unlike Biden, Trump persistently resisted returning the documents, apparently because he considered them his personal property. That resistance included months of wrangling with the National Archives and Records Administration and incomplete compliance with a federal subpoena, which culminated in the FBI’s August 8 search of Mar-a-Lago.
Then again, Biden kept classified records in unapproved locations for six years, while Trump managed to do that for about a year and a half. Biden said he was “surprised” to learn last fall about the documents in his former office. Biden “takes classified information and materials seriously,” said Richard Sauber, the “special counsel to the president” who is overseeing the White House’s response to the case of the misplaced secrets. “We are confident that a thorough review will show that these documents were inadvertently misplaced, and the president and his lawyers acted promptly upon discovery of this mistake.””
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“there is considerably more evidence to support an inference of criminal intent in Trump’s case. That applies to all three potential charges that the FBI mentioned in its Mar-a-Lago search warrant affidavit: removing or concealing government documents, retaining “national defense information,” and obstructing a federal investigation.
But all three charges include mens rea elements that will be hard to satisfy even in Trump’s case. Based on what we know so far, it is plausible that Trump’s conduct can be explained by a combination of ignorance, arrogance, stubbornness, laziness, and carelessness rather than criminal intent.
Even if Smith turns up more evidence that Trump “willfully” mishandled documents or deliberately obstructed the FBI’s investigation, prosecuting him while giving Biden a pass is bound to be perceived as unfair, inconsistent, and politically motivated. Trump’s supporters surely would see it that way, and so would many Americans who have no particular allegiance to him and might even be inclined to vote for Biden in 2024.
To avoid the firestorm that such a decision would ignite, Garland could let Smith and Hur lay out their findings, make a show of carefully weighing them, and then decide there is not enough evidence in either case to prove criminal charges beyond a reasonable doubt. That might even turn out to be true.”