- It does not appear that Biden or Pence intentionally took classified documents from the White House when their Vice Presidential terms ended. It looks very much like whichever staffers boxed up their papers bundled the lot of them into boxes without examining them one-by-one.
Trump, in contrast, intentionally made off with more than 300 classified documents, many of which were Top Secret/SCI, the highest classification there is, and may include some of the most super-sensitive material extant. They were found among a boatload of other documents that, by law, should have been turned over to the National Archives and Records Administration. The very volume of documents he took with him (11,000+) and his subsequent behavior regarding turning them over strongly implies that he intended to take them.
- Thus far, it does not appear that Biden or Pence removed any classified documents from their cover sheets or did anything untoward with the contents.
The cover sheets of numerous Trump classified documents appear to have been removed from their contents, raising questions about what happened to these materials. Could they now be in Russia and/or Saudi Arabia.
- Biden and Pence understand that they cannot keep these documents. As soon as they were discovered, they were turned over to the Archives and the Department of Justice.
Trump asserts ownership over his classified documents despite the clear language of the law stating that he does not own them. He refers to them as “cool keepsakes.”
- Trump also asserts that he declassified everything he absconded with, by merely thinking it. That is not the way declassification works.
Neither Biden nor Pence make such a fanciful claim. Trump, FYI, is wrong in asserting that only the President can declassify documents. The Vice President, among others, also has such authority but again, it cannot be a case of simply “make it so.
- It was the National Archives that discovered that Trump made off with a massive haul of documents, and then made multiple requests that they be returned. After many months, Trump grudgingly returned 15 boxes, but refused to return the rest.
Biden and Pence returned the documents to the Archives immediately upon their discovery.
- After getting no cooperation from Trump regarding the rest of the documents in his possession, the Archives asked the Justice Department to intervene. Trump then refused to comply with Justice’s subpoena, thus forcing the FBI to execute a search warrant for Mar a Lago following 18 months of Trump’s obstructionism.
Biden and Pence are fully cooperating with the Archives and Justice Department. They both invited the FBI to search their houses.
- Trump lied to the Archives and Justice Department about having turned over all the documents he stole, falsely certifying that they had all been turned over.
Biden and Pence complied fully with the law regarding return of the documents.
- Trump was observed tearing up documents while President and flushing some down White House toilets. Moreover, some Trump documents had been mutilated.
To our knowledge, no Biden White House toilets have been clogged with classified documents requiring the services of a plumber. None of the returned Biden and Pence documents have been mutilated.
- It does not appear that Biden or Pence are going to be prosecuted for any illegal activity surrounding the discovery of classified documents in their possession, as there are not likely to be any findings of intent.
Trump unambiguously violated a number of criminal laws with respect to his classified document cache beyond illegally keeping them. While he merits prosecution, the Biden and Pence discoveries may make it more difficult politically to go after him.
This is not to say that Joe Biden and Mike Pence are somehow absolved of blame and condemnation for their sloppiness. Any lower-level federal employee who took classified documents home would probably be quickly indicted, convicted and jailed for so doing. So much for the well-worn assertion (that should be permanently retired) that “no man is above the law.”
Despite that, the public’s limited capacity for nuance (intentionality vs. inadvertence) means that it is highly probable that a false equivalency will be made regarding the Trump, Biden and Pence classified documents cases. While the differences in legal exposure are dramatic, the political consequences are not likely to be.
January 29, 2023