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Follow for the latest on the discovery of the second batch of classified documents from Biden’s vice presidency.

WASHINGTON — The disclosure that classified documents were found in a
private office that Joseph R. Biden Jr. had used before beginning his 2020 campaign and at his residence in Wilmington, Del., has prompted
comparisons to former President Donald J. Trump’s hoarding of sensitive government records, which is the subject of a criminal investigation.

Based on what is publicly known so far, here is a closer look:

How are the situations similar?
At a basic level, both involve official files bearing classification
markings that improperly accompanied Mr. Trump and Mr. Biden after they
left office. Under the Presidential Records Act, White House records are supposed to go to the National Archives and Records Administration once an administration departs. Private citizens generally lack authorization to
hold classified documents, and regulations require such files to be stored securely.

The Justice Department is scrutinizing both situations. In Mr. Trump’s
case, Attorney General Merrick B. Garland has appointed a special counsel,
Jack Smith, to oversee the investigation. In Mr. Biden’s case, Mr. Garland
has assigned a Trump-appointed U.S. attorney, John R. Lausch Jr., to
conduct an initial investigation to help him determine whether to appoint
a special counsel.

How are the situations different?
There are key gaps in the public record about both, but the available information suggests there were significant differences in how the
documents came to light, their volume and — most important — how Mr. Trump
and Mr. Biden responded. Mr. Trump and his aides resisted the government’s repeated efforts to retrieve them all. Mr. Biden’s lawyers reported the
problem and the White House says it has fully cooperated, including by searching Mr. Biden’s Wilmington and Rehoboth Beach, Del., houses, “the
other locations where files from his vice-presidential office might have
been shipped in the course of the 2017 transition.” These apparent
differences have significant legal implications.

Where were the files?
In Mr. Trump’s case, several hundred government files marked as classified
— along with thousands of unclassified documents and photos — ended up at
his Florida club and residence, Mar-a-Lago, after he left office. Some
were in cartons in a locked storage closet, and the F.B.I. discovered
others in Mr. Trump’s office, including in his desk, according to court filings.

In Mr. Biden’s case, the administration said in a statement on Monday that
“a small number of documents with classified markings” had been discovered
in a locked closet in an office at a Washington think tank, the Penn Biden Center for Diplomacy and Global Engagement. It said that Mr. Biden had periodically used the space after leaving the vice presidency in 2017 and before he began his presidential campaign.

Understand the Biden Documents Case
The discovery of classified documents from President Biden’s time as vice president has prompted a Justice Department investigation.
In Washington: Attorney General Merrick B. Garland’s appointment of a
special counsel to investigate the situation drew a mixed reception from Republicans, who had hoped to spearhead the effort themselves.
Biden’s Miscalculations: How has Mr. Biden handled the document
discoveries, and why was the public in the dark for so long? Michael D.
Shear, a White House correspondent for The Times, joined “The Daily” to
discuss the ordeal.
Implications for Trump Case: Despite the differences between them, the
cases involving the president and his predecessor are similar enough that investigators may have a harder time prosecuting Mr. Trump criminally. Democrats’ Reaction: Mr. Biden is facing blowback from some members of his
own party, as his allies express growing concern that the case could get
in the way of the Democrats’ momentum coming out of the midterms.
The administration also acknowledged on Thursday that subsequent searches
had found “a small number of additional Obama-Biden administration records
with classified markings” among personal and political papers at his
Wilmington home. Most were found in a storage space in his garage, it
said; one page was among stored materials in an adjacent room.

How did the files get there?
As president, Mr. Trump is said to have periodically taken records from
the Oval Office to the residential areas of the White House. During the
chaos of his last days in office after he sought to cling to power, those
files were apparently packed up with personal items like clothing and
mementos and shipped to Mar-a-Lago.

It is not yet known how records from the Obama administration wound up at
the Penn Biden Center and Mr. Biden’s house, apparently during the 2017 transition. On Tuesday, Mr. Biden said that he took classified information seriously and that he was “surprised to learn that there were any
government records there that were taken to that office.”

How did the problems come to light?
Very differently.

In the case of Mr. Trump, the National Archives realized in the spring of
2021 that historically prominent files were missing and asked Mr. Trump to return them. The agency eventually retrieved 15 boxes and found that they included documents with classification markings. The Justice Department retrieved additional records after issuing a subpoena, but it developed evidence that Mr. Trump still had more.

In the case of Mr. Biden, the White House has said that his lawyers
discovered the files on Nov. 2 when they were packing up to vacate the
office at the Penn Biden Center. “The documents were not the subject of
any previous request or inquiry by the archives,” it said.

The administration said that after the first classified documents were discovered, Mr. Biden’s team searched two other places where materials
from his vice-presidential office might have been shipped after the Obama administration departed: his home in Wilmington and another in Rehoboth
Beach, Del. None were found in Rehoboth Beach. It did not say when the
searches began, but said that the review was completed on Wednesday.

How Times reporters cover politics. We rely on our journalists to be independent observers. So while Times staff members may vote, they are not allowed to endorse or campaign for candidates or political causes. This includes participating in marches or rallies in support of a movement or
giving money to, or raising money for, any political candidate or election cause.

Learn more about our process.
How did they respond?
Very differently.

Mr. Biden’s team reported the problem to the National Archives on the same
day it was discovered, and the agency retrieved the materials the next
morning, the administration said. It emphasized that Mr. Biden’s team had
since cooperated with the archives and the Justice Department, including
by searching his two houses, “to ensure that any Obama-Biden
administration records are appropriately in the possession of the
archives.”

Mr. Biden said on Tuesday that his lawyers had acted appropriately: They immediately called the archives to turn over the materials. “We’re
cooperating fully — cooperating fully — with the review, which I hope will
be completed soon,” he said.

By contrast, Mr. Trump and his aides for months delayed responding to the National Archives’ repeated requests for months, then failed to fully
comply with the subpoena while falsely saying they had. A court filing
also suggested that security camera footage showed that “government
records were likely concealed and removed” from the storage room at Mar-a-
Lago after the subpoena.

Mr. Trump has repeatedly attacked the National Archives for telling the
Justice Department about the matter and portrayed the investigation as illegitimate. A federal judge is considering holding his team in contempt
for defying the subpoena.

In each case, were the documents still classified?
Probably.

Mr. Trump publicly claimed that before leaving office, he declassified everything that turned up at Mar-a-Lago. No credible evidence has emerged
to support that claim, and his lawyers have resisted repeating it in
court, where there are professional consequences for lying. (Moreover, the potential crimes cited in the affidavit used to search Mr. Trump’s Florida residence do not depend on whether mishandled documents were classified.)

While the executive order governing the classified information system
gives vice presidents the same power to declassify secrets as presidents
wield, Mr. Biden has not claimed he declassified the materials found in
the Penn Biden Center closet. He said on Tuesday that he did not know what
they were.

How many classified documents were there?
Many more classified documents appear to have been improperly stored at
Mr. Trump’s estate than at Mr. Biden’s office.

Court filings say that 184 documents marked as classified were in the 15
boxes the National Archives initially retrieved from Mar-a-Lago. The Trump
team turned over 38 more such records after the subpoena, and the F.B.I.
found another 103 in its search.

The Biden administration’s initial statement said a “small number” of
documents marked as classified had been discovered in the closet at the
Penn Biden Center. CBS News has reported there were about 10. The administration’s statement on Thursday about the second batch found at his house in Wilmington similarly described it as “a small number.”

Were documents also mutilated or destroyed?
Mr. Trump appears to have destroyed official documents. Former aides have
said he ripped up files while in office, and a letter from the National Archives indicated that some of the files it retrieved had been mutilated.

There has been no allegation that Mr. Biden destroyed public records.

What are the legal consequences of these differences?
The implications of these differences are significant, though more
information could still come to light.

One question is whether any mishandling of secrets was intentional. A
provision of the Espionage Act, for example, makes it a crime if someone, without authorization, willfully retains a national security secret “and
fails to deliver it on demand” to an official entitled to take custody of
it.

Another provision of the act says that a person can be guilty if, through “gross negligence,” he or she permits national security papers to be
removed from their proper place of custody. That provision has
historically been interpreted in case law and Justice Department practice
as requiring a state of mind that is so reckless that it falls just short
of being willful.

The application to search Mar-a-Lago cited the Espionage Act, as well as
laws against destroying official documents and obstructing an official
effort. That the F.B.I. discovered additional documents with
classification markings in its search of Mar-a-Lago has also raised the possibility that Mr. Trump’s team defied the subpoena and made false statements.

https://www.nytimes.com/2023/01/10/us/politics/trump-biden-classified- documents.html

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