The Biden and Trump classified documents: How are they different?

A few days ago, it became known that classified documents were found in an office used by Joe Biden after leaving his post as Vice President of the United States in 2017. More classified material was also found in his private residence, in Wilmington, Delaware.

“The rules that are established for the handling of classified documents are very clear. And those rules, clearly, prohibit a president or vice president from keeping classified documents or any material after their term ends,” explains César Grajales, a Miami-based political analyst and director of the conservative LIBRE Initiative, in statements to the voice of america.

The case is reminiscent of another similar one. In August 2022, when FBI agents raided the private residence of former President Donald Trump and seized classified material.

“This leads to a clear comparison with the situation that former President Trump had in what was the summer of last year. I think it is good to clarify that there are notorious differences,” said Marco Friera, a Democratic analyst consulted by the VOA.

So, what are those differences and similarities between both cases?

How many documents were there?

To begin with… How many classified documents are we talking about? In Biden’s case, her personal attorneys discovered “a small number of documents,” the White House reported. They were in a locked cabinet at the Penn Biden Center for Diplomacy and Global Engagement in Washington. That place hosted Biden’s office until 2020, when the presidential campaign began. 5 more classified documents were also found at his private residence in Delaware.

In Mar-a-Lago, the private residence of Donald Trump, agents of the Federal Bureau of Investigation, the FBI, raided the property and found more than 300 classified documents, some of them classified as top secret.

How was the return?

The first differences are found in the way in which the classified documents were returned.

“And the difference is much more marked in the level of collaboration. As I said, President Biden and his lawyers delivered them. In the case of Trump, as we all experienced it 6-7 months ago, they refused to accept that they had these documents, they did not want to hand them over. Basically they wanted to retain them”, adds Frieri.

Biden’s personal lawyers immediately alerted the White House counsel’s office, which in turn notified the National Archives and Records Administration.

“Documents that are classified as secret are sent to the National Archives, those Archives have the highest protection and those documents are kept under strict control,” says Rafael Peñalver, a constitutional lawyer who works regularly in Washington DC.

In the case of Trump, in December 2021, the National Archives collected 15 boxes of classified material. But they were aware that more documents were missing. For this reason, in August 2022, the police authorities carried out a search at his residence in Florida. They took 11,000 documents and 33 boxes. There were at least 360 classified documents.

“Whether it is 100 documents, as in the case of President Trump, which apparently are many classified documents, or whether it is only one, as they wanted to say about President Biden, the number is irrelevant because the rule is exactly the same: for a classified document , or for 100 or for 1,000 classified documents”, recalls Grajales.

A special prosecutor for Biden

Now, a special prosecutor is taking up the Biden case. “I am here today to announce the appointment of Robert Hur as special counsel in accordance with the Department of Justice rules governing these matters,” announced the US Attorney General, Merrick Garland, during a public appearance a few days ago, after learning of the material discovery.

But the legal consequences for one case and another would also be different. From the United States government they explain that there was no record of these documents and that they would cooperate with the Department of Justice.

“We have been cooperative from the moment we informed the archives that a small number of documents were found. And we will continue to cooperate. We have cooperated closely with the Department of Justice throughout its review and will continue that cooperation with Special Counsel,” said White House Spokesperson Karine Jean-Pierre on this matter.

The legal consequences

They also remember that the documents were delivered the same day they were discovered.

“In fact, I would tell you that Biden, so far, if everything we have been told is exactly how it is, the way the White House has responded to us, the way President Biden has responded, is the example of how to respond when you accidentally find a document that is in your possession”, argues Peñalver.

But if, after all, this case is found to be prosecutable, the president would be immune, as concluded by the Justice Department’s Office of Legal Counsel.

In the case of former President Donald Trump, since he is no longer in office, he would not enjoy this protection and it could have legal consequences. “If there is intentionality, there is criminality. There is a statute that says ‘whoever does this, and takes secret documents from their proper place, that is a crime’ and like every citizen, the president or vice president would have to be prosecuted according to that”, defends the constitutional lawyer consulted by VOA.

Biden and Trump, different reactions

The reactions of Biden and Trump have also been different. The current US president insists that the right thing was done: follow the protocols. “They realized that there were several classified documents in that box. And they did what they should have done. They immediately called the Archives, they immediately called the Archives, they turned them over to the Archives,” President Joe Biden has insisted.

Trump said he declassified those documents, though he has not provided evidence. He believes that the police action at his house was solely politically motivated.

“There is just a witch hunt for no reason, well, for political reasons, let’s say. And they know it, ”he stated at the time.

Meanwhile, the investigations continue their course and we will have to wait for the judicial decision in both cases. And what implications would it have, also in the political sphere.

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