The recent discovery of classified documents at U.S. President Joe Biden’s former office at a think tank in Washington and his home in Delaware has invited comparisons to a case involving former President Donald Trump’s handling of government records.
Attorney General Merrick Garland announced Thursday that he was appointing a special counsel to examine the Biden documents case, just weeks after he named a special counsel to investigate Trump’s handling of classified documents at his Florida estate.
Meanwhile, Representative Jim Jordan, the Republican chairman of the House Judiciary Committee, said on Friday that the panel will investigate the Justice Department’s handling of both cases, saying “we have a similar situation happening to President Biden.”
But with much of both investigations under wraps, legal experts cautioned against drawing hasty comparisons.
“I think it’s very early to be making comparisons generally as there is more information publicly known about the Mar-a-Lago matter and other matters than there are about the [current] president’s case,” said Jordan Strauss, a former federal prosecutor now a managing director at Kroll.
Here is a look at the similarities and differences between the two cases and the stakes for Biden and Trump:
What documents were found
Both cases involve classified documents, including some marked “top secret.”
Federal investigators have recovered more than 300 documents with classified markings that left the White House with Trump, according to court documents.
About 100 of those documents, some of them classified as “top secret,” were seized during the FBI’s August 2022 search of Trump’s Mar-a-Lago estate.
By comparison, Biden’s personal lawyers say they found a “small number” of classified documents – said to number fewer than a dozen – at the Washington office of the Penn Biden Center on Nov. 2, 2022, and another “small” batch at Biden’s Delaware home on Dec. 20.
But legal experts said the substance of the documents is more important than their number.
“What matters to me … is what those documents were,” said Charles Stimson, a former federal prosecutor and deputy assistant secretary of defense who is now a senior legal fellow at the Heritage Foundation. “I mean you could have one document that had special compartmentalized information in it that could be incredibly damaging if disclosed to the wrong people versus 40 documents that were classified but not as important.”
The government has not disclosed the content of the classified documents under investigation, but news reports have suggested that among the records recovered from Trump was sensitive information about China and Iran’s missile program.
CNN reported this week that the 10 documents found in Biden’s office included “intelligence memos and briefing materials” about Ukraine, Iran and the United Kingdom.
What criminal charges could Biden and Trump face?
Under the Presidential Records Act, presidential records belong to the government and must be handed over to the National Archives and Records Administration at the end of a president’s term in office.
What is more, the Espionage Act of 1917 prohibits the improper disclosure, publishing or mishandling of classified information.
Inadvertently taking classified documents home or to another unauthorized location doesn’t always result in a criminal penalty.
From prosecutors’ perspectives, far more important is what someone does when they find documents that they are not authorized to keep.
In Biden’s case, his lawyers say they turned over the documents to the government without delay and that they’re cooperating with the National Archives and the Justice Department.
In Trump’s case, the FBI executed a search warrant of Mar-a-Lago for documents in his possession after he failed to turn them over in response to a May 2022 subpoena.
Strauss said the Justice Department investigation of Trump’s handling of classified documents appears to be more focused on “what the former president’s actions were after receiving the demand and the subpoena.”
With the investigation into the Biden documents case, “it’s too early to know exactly what the focus will be on President Biden,” Strauss said.
“Depending on how this is handled, can be anything from a simple security violation all the way up to a much more serious crime, and that’s all very fact dependent,” Strauss said.
Who are the special counsels?
Citing “extraordinary circumstances,” Garland has appointed separate special counsels to investigate the Trump and Biden documents cases.
Jack Smith, a former chief of the Justice Department’s Public Integrity Section, is leading the investigation of Trump’s handling of documents.
Robert Hur, a former U.S. Attorney and Justice Department official under Trump, is heading the Biden probe.
A special counsel is a quasi-independent prosecutor appointed when a perceived conflict of interest might cast doubt on the integrity of a Justice Department investigation.
While the appointment of a semi-independent prosecutor will shield the investigations from any perception of undue political influence, it is ultimately the attorney general who will decide whether to file any criminal charges against either Trump or Biden, Stimson said.
“And so that process has to play out.”
Complicating any decision by Garland is a long-standing Justice Department legal opinion that states a sitting president can’t be indicted.
“So it definitely makes things harder for the Justice Department, particularly for a Justice Department that is so publicly committed to restoring faith in the rule of law,” Strauss said.