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EXPERT VOICES ROUNDUP: Apples and Rotten Oranges: How Biden and Trump Differ on Classified Documents

Jan 10, 2023

Yesterday, it was reported that President Biden’s attorneys discovered a small number of classified documents from the Obama-Biden administration in a locked closet at his former private office. MAGA Republicans immediately rushed to attack the President and defend Trump’s mishandling of classified documents. But make no mistake – these two situations are not comparable. On their first few days in control of the House, MAGA Republicans are threatening to impeach President Biden instead of focusing on the real problems that the American people care about, like inflation. When a court-approved search by the Department of Justice revealed Trump hid numerous sensitive and highly classified documents at a resort open to the public, the House Judiciary Committee thought it was a joke and House Oversight Chair Comer said that it was “not a priority.” Now, these hypocrites are singing a different tune; House-kingmaker Marjorie Taylor Greene has already called for impeachment, while Comer is pledging to open an investigation. The politicians pushing these investigations have no credibility, and these MAGA leaders in Congress have the wrong priorities. 

Joyce Vance, former federal prosecutor

“Big differences between this & Trump’s Mar-a-Lago situation: they were found in an office setting, not in Biden’s home. Biden’s team immediately volunteered news of the discovery to the Archives & turned them over immediately. It’s apples to oranges.” [Joyce Vance Twitter, 1/9/23]

The Hill: Biden Documents: How The Discovery Of Classified Materials Differs From Trump. “[T]here are key differences between the two cases, which many Biden allies swiftly pointed out, while several Trump supporters openly wondered if the president would also see an FBI search of his home. Here’s a look at some of the ways the Biden and Trump discoveries of classified documents differ, based on what is known so far. […] The president’s lawyers alerted the National Archives the same day of the discovery, and the agency took possession of the materials the next morning. The matter has since been referred to the Justice Department for review. […] Federal officials had tried for months to recover materials from Trump they believed were being kept at Mar-a-Lago, some of which were discovered to be in unsecured locations…Concern over how many documents Trump was holding at his property triggered the Archives to alert the Justice Department, which eventually led to the FBI search. […] One key difference between the Trump and Biden cases is the sheer number of documents involved. Multiple news outlets reported that lawyers for Biden found about 10 classified documents…By comparison, a heavily redacted affidavit used to justify the August FBI search of Trump’s Mar-a-Lago property showed that authorities had discovered 15 boxes in January 2022 that contained 184 classified documents, including 25 that were marked ‘top secret.’” [The Hill, 1/9/23]

Eugene Daniels, Rachael Bade, and Ryan Lizza, Politico Playbook

“Now a cursory review of the facts reveals several obvious differences between the circumstances surrounding the Trump case and the documents found in Biden’s old office — starting with the fact that the Biden papers were, according to Sauber’s account, handed over immediately and willingly to the Archives after they were discovered on Nov. 2. Our courts guru Josh Gerstein pointed out some other distinctions worth noting: 1) There’s simply fewer documents at stake, ‘about 300 in the Trump case versus ‘a small number’ at the think tank, per Sauber’; 2) a think-tank office is not a personal residence, and it’s ‘hard to argue you don’t know what’s lying around your house if there’s a lot of it’; and 3) it’s not unusual ‘for small numbers of emails or documents that are classified to get mixed in with unclassified records.’” [Politico, 1/10/23]

CNN: There Are Clear Distinctions Between Trump And Biden’s Two Cases. “Republicans seized on revelations that several classified documents from Joe Biden’s time as vice president were found in his former private office to create cover for former President Donald Trump’s hoarding of secret records. The disclosures Monday about the material found last fall spun up an immediate political storm at a time when Trump is in increasing legal peril. The new GOP House majority is meanwhile rushing to undermine investigations against him and unleashing a wave of counter investigations against the current president. But there are clear distinctions between the two cases. […] The new controversy so far appears to be on a smaller scale than the more than 100 classified documents – some bearing the highest designations of government secrecy – taken from Trump’s resort at Mar-a-Lago after a court-approved search by FBI agents. And Biden appears to be cooperating with the National Archives and the Justice Department in a way that Trump failed to do and unlike the former president he is not being investigated for possible obstruction of justice. Bradley Moss, a security clearances expert, told ‘CNN This Morning’ on Tuesday that so far, and if no more problematic evidence emerges, the current president team’s conduct was different because of ‘the cooperation and the absence of obstruction in which they have engaged compared to what Donald Trump did.’ ‘So far, it’s completely apples to oranges here,’ said Moss, who is the deputy executive director of the James Madison Project.” [CNN, 1/10/23]

Matthew Miller, MSNBC analyst

“And they immediately notified the archives, turned them over, and cooperated with DOJ. What a difference with a certain other former official!” [Matthew Miller Twitter, 1/9/23]

Alicia Strohl Resnicoff, former US attorney

“The Biden team immediately self-reported and no dang search warrant was needed.” [Alicia Strohl Resnicoff Twitter, 1/9/23]

Mark S. Zaid, attorney

“This should & will be investigated. This occurs commonly & usually results in administrative rather than criminal action. Trump & team would have fared exactly same way had he not delayed, obstructed & potentially lied abt existence of classified records at MAL. Big difference.” [Mark S. Zaid Twitter, 1/9/23]

Barb McQuade, law professor

“Facts will be important in determining whether Biden’s classified documents were criminally mishandled, but there appear to be several distinguishing factors between this case in the Mar-a-Lago documents…In the Mar-a-Lago case, all but that last factor appear to be present. In the case of the Biden documents, there is no indication that any of the factors are met, but referral for investigation by the Chicago US Atty, a Trump appointee, seems prudent.

My take: It’s not a big deal, at least not based on the facts we know, but Trump will use it to falsely claim he is being singled out for disparate treatment.” [Barb McQuade Twitter (Thread), 1/9/23]