Joe Biden ‘Classified Documents’ Controversy

On January 9 2023, conspiracy theorist Rep. Marjorie Taylor Greene (R-Georgia) tweeted that U.S. President Joe Biden “took classified documents from the White House,” claiming that the Department of Justice (DOJ) and the National Archives and Record Administration (NARA) had victimized Donald Trump for a similar infraction:

The usual array of right-wing politicians, pundits, and other conspiracy theorists rapidly cobbled together a narrative, suggesting that Biden had engaged in the same behavior for which Trump was investigated:

Former United States President Donald Trump appeared repeatedly in the news in 2022, in part because of reports of improper retention of hundreds of highly classified documents.

On August 22 2022, the New York Times explained the scope of a then-ongoing investigation into Trump’s cache of documents:

The initial batch of documents retrieved by the National Archives from former President Donald J. Trump in January [2022] included more than 150 marked as classified, a number that ignited intense concern at the Justice Department and helped trigger the criminal investigation that led F.B.I. agents to swoop into Mar-a-Lago [in August 2022] seeking to recover more, multiple people briefed on the matter said.

In total, the government has recovered more than 300 documents with classified markings from Mr. Trump since he left office [in January 2021], the people said: that first batch of documents returned in January [2022], another set provided by Mr. Trump’s aides to the Justice Department in June [2022] and the material seized by the F.B.I. in the search [in August 2022].

The previously unreported volume of the sensitive material found in the former president’s possession in January [2022] helps explain why the Justice Department moved so urgently to hunt down any further classified materials he might have.

And the extent to which such a large number of highly sensitive documents remained at Mar-a-Lago for months, even as the department sought the return of all material that should have been left in government custody when Mr. Trump left office, suggested to officials that the former president or his aides had been cavalier in handling it, not fully forthcoming with investigators, or both.

On October 6 2022, reports appeared that the Justice Department had continued to search for additional classified material not uncovered in searches:

The government has found more than 300 classified documents in material that had been kept at Mar-a-Lago [to date], including some marked as containing the most sensitive information that would cross the president’s desk.

But the Justice Department has previously signaled doubts that Mr. Trump had turned over everything in his possession. Shortly after the search in August [2022], it was revealed that federal investigators had found dozens of empty folders at Mar-a-Lago marked as containing classified information. The disclosure raised further questions about whether the Justice Department had indeed recovered all the classified materials that may have been taken out of the White House.

The empty folders were found during the search of Mar-a-Lago along with 40 other empty folders that said they contained sensitive documents that should be returned “to staff secretary/military aide,” according to a court filing. Agents found the empty folders along with seven documents marked as “top secret” in Mr. Trump’s office. Investigators also found 11 more marked as “top secret” in a storage room.

In December 2022, the New York Times noted that additional classified documents were located in a search of four locations used by Trump. An infographic they published on September 3 2022 described “8 documents marked as top secret, 54 marked as secret, 31 marked as confidential and 11,179 government documents or photographs without classification markings” identified at press time.

On NARA’s website, an ongoing series of statements about the investigation was available here.

January 2023 Biden Classified Documents ‘Controversy,’ Comparison

On January 10 2023, CBS News summarized the developing story, describing “roughly” ten documents in question:

Attorney General Merrick Garland has assigned the U.S. attorney in Chicago to review documents marked classified that were found at the Penn Biden Center for Diplomacy and Global Engagement in Washington, two sources with knowledge of the inquiry told CBS News. The roughly 10 documents are from President Biden’s vice-presidential office at the center, the sources said. CBS News has learned the FBI is also involved in the U.S. attorney’s inquiry.

The material was identified by personal attorneys for Mr. Biden on Nov. 2 [2022], just before the midterm elections, Richard Sauber, special counsel to the president confirmed. The documents were discovered when Mr. Biden’s personal attorneys “were packing files housed in a locked closet to prepare to vacate office space at the Penn Biden Center in Washington, D.C.,” Sauber said in a statement to CBS News. The documents were contained in a folder that was in a box with other unclassified papers, the sources said. The sources revealed neither what the documents contain nor their level of classification. A source familiar with the matter told CBS News the documents did not contain nuclear secrets.

Sauber also said that on the same day the material was discovered, Nov. 2 [2022], the White House counsel’s office notified the National Archives, which took possession of the materials the following morning.

“The discovery of these documents was made by the President’s attorneys,” Sauber said. “The documents were not the subject of any previous request or inquiry by the Archives. Since that discovery, the President’s personal attorneys have cooperated with the Archives and the Department of Justice in a process to ensure that any Obama-Biden Administration records are appropriately in the possession of the Archives.”

One immediately obvious difference was the series of events in both cases.  Trump was unwilling to surrender material sought by NARA, whereas lawyers for President Biden “identified” the documents and immediately reported their discovery.

On January 9 2023, the New York Times‘s initial coverage of the story emphasized those disparities:

The White House said in a statement that the White House Counsel’s Office notified the National Archives and Records Administration on the same day the documents were found “in a locked closet” and that the agency retrieved them the next morning.

Mr. Biden had periodically used an office at the center from mid-2017 until the start of the 2020 presidential campaign, and the lawyers were packing it up in preparations to vacate the space. The discovery was not in response to any prior request from the archives, and there was no indication that Mr. Biden or his team resisted efforts to recover any sensitive documents.

[…]

But while Mr. Trump tried to suggest a parallel, the circumstances of the Biden discovery as described appeared to be significantly different. Mr. Biden had neither been notified that he had official records nor been asked to return them, the White House said, and his team promptly revealed the discovery to the archives and returned them within a day.

“The documents were not the subject of any previous request or inquiry by the archives,” Richard A. Sauber, a special White House counsel, wrote in the statement. “Since that discovery, the president’s personal attorneys have cooperated with the archives and the Department of Justice in a process to ensure that any Obama-Biden administration documents are appropriately in the possession of the archives.”

A separate January 10 2023 CBS News storo documented a nearly immediate response from lawmakers:

In a letter to Stuart Delery, the White House counsel, Oversight Committee Chairman James Comer, of Kentucky, wrote the committee “is concerned that President Biden has compromised (intelligence) sources and methods with his own mishandling of classified documents.”

Comer asks the White House to turn over all documents and communications related to the classified material found in Mr. Biden’s personal office — including the classified documents themselves — by Jan. 24 [2023]. The documents were given to the National Archives on Nov. 3 [2022], according to a White House statement. They are believed to be held in a secure facility in Washington.

[…]

Comer told CBS News [on January 10 2023] that “it appears that it’s another cover-up. And we just have a lot of questions with respect to how Biden’s been treated verses how Donald Trump was treated.”

“We simply want to know the same things we asked when Mar-a-Lago was raided,” Comer said. “Who has which documents? What level of classification are we talking about here? How many documents? And what was the process involved with making the decision to raid Mar-a-Lago, versus the decision to apparently do nothing with President Biden?”

As the story developed, several stories analyzed similarities and differences, with the New York Times explaining:

There are key gaps in the public record about both [scenarios involving Trump and Biden], 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, while Mr. Biden’s lawyers reported the problem and the White House says it has fully cooperated. These apparent differences have consequential legal implications.

The Associated Press published a similar “side by side” analysis of the scenarios on January 10 2023. A January 11 2023 piece in the UK-based The Guardian more succinctly explained some key differences, citing “the sheer quantity and scattered nature of classified materials that were potentially exposed in such a way as to support an inference of intentional misconduct” in the case of Donald Trump:

The US justice department has clear criteria for prosecuting people who intentionally mishandle highly sensitive government documents, and the facts of the Trump documents case appear to satisfy more elements than in the Biden documents case.

Broadly, the Department of Justice has typically pursued prosecutions when cases have involved a combination of four factors: [willful] mishandling of classified information, vast quantities of classified information to support an inference of misconduct, disloyalty to the United States and obstruction.

The criminal investigation into Trump touches on at least two of those elements – obstruction, where a person conceals documents with an intent to impede a government agency, and the volume of classified materials at Mar-a-Lago – unlike the Biden case, which appears to touch on none.

Summary

On January 9 2023, news that United States President Joe Biden was found to be in possession of classified documents prompted predictable yet baseless comparisons with ongoing legal problems facing Donald Trump — some of which had to do with mishandling and retaining classified material. As typically indicated in news about the scenario involving Biden, the situations differed in several ways, primarily the scale of documents and cooperation (or lack thereof) with federal agencies like NARA.