“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.””
“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.”