January 17

By Susan Milligan

One president had to be hounded for government documents, including classified material that was only retrieved after the FBI executed a search warrant at his home. And more documents were found even after the president’s lawyer signed an affidavit saying everything had been retrieved.

The other president voluntarily turned over documents – including classified material – after his lawyers discovered them in his non-White House office and home, and is cooperating with the Department of Justice.

Legally, the differences between the cases of former President Donald Trump and sitting President Joe Biden are dramatically different. Politically, those differences may not matter at all and may affect both the investigation into whether Trump mishandled documents and Biden’s ability to use the issue against Trump in a hypothetical 2024 rematch.

Since the Biden administration acknowledged – only after the story was unearthed by CBS – that government documents had been found in a locked closet at an office at the Penn Biden Center at the University of Pennsylvania. Republicans have pounced on the issue, claiming uneven treatment and hypocrisy compared to how the discovery of documents at Trump’s Mar-a-Lago resort was treated.

“The stench of hypocrisy coming from this administration is making the American people sick,” Sen. Tim Scott, South Carolina Republican, told Fox News on Monday.

Newly elected House Speaker Kevin McCarthy, California Republican, told Fox the twin investigations of the documents should be conducted with equal resources – even though the details of each case, given the facts now known, are radically different.

“They apply a special counsel, but how many agents do they apply to that and apply to President Trump as well?” McCarthy said. “This is just hypocrisy and I’m tired of this Justice Department.”

For Democrats, the Biden documents affair is another frustrating, unforced error just as Biden’s approval ratings are starting to inch upward and ahead of an expected announcement by the president that he will seek reelection.

“I get that what Donald Trump did is totally different than what Joe Biden did,” former Sen. Claire McCaskill, Missouri Democrat and a former prosecutor herself, told MSNBC’s “Morning Joe” on Tuesday.

But “when a jury is trying to figure out whether someone should be held criminally responsible, that’s going to be in their heads,” she added. The easiest case for prosecutors to make against Trump, she said, is the Mar-a-Lago documents case. After Trump refused to hand over documents identified as missing and demanded by the National Archives and Records Administration, the FBI, with a search warrant, found the documents, including top secret material, from Trump’s Florida home, which is also used as a resort for outside guests.

“Now that is no longer as easy,” McCaskill said. “The ‘whataboutism’ is going to be rampant in the jury room. It may not be fair. It may not be right. But that’s the reality of where we are.”

In Biden’s case, the issue is not one of concealing documents or defiance of requests to give them back to the government. From the facts provided by the Biden administration, it was Biden’s own lawyers who discovered the documents and immediately informed government authorities and turned them over.

Subsequent documents were found at Biden’s Wilmington, Delaware, home – in a locked garage not accessible to the general public.

In Biden’s case, the discovery of classified documents in an unapproved place has been a drip-drip-drip of damaging information. In Trump’s case, it was more like a sequential, painful pulling of teeth.

That could make a difference legally, experts say, since authorities consider whether someone deliberately held onto classified documents and refused to cooperate with authorities, as opposed to voluntarily returning them.

It is akin to two cases involving overdue library books, argues Neal Katyal, former acting solicitor general. In one case, Katyal wrote, a person borrows a book, forgets about it, discovers it years later and immediately returns it to the library. In the other case, an individual “knowingly” takes the book, then refuses to give it back even after repeated demands from the library.

“Intuitively, we all view those two scenarios differently. And fortunately, so does the law when it comes to something like the possession of classified documents,” Katyal wrote on Twitter.

But politically, Biden is in a self-created bind. In September – more than a month before his lawyers discovered government documents at his Penn Biden Center office – the president castigated Trump for having classified documents at his personal residence.

“How one – anyone – could be that irresponsible,” Biden said on CBS’s “60 Minutes” then.

There is also a question of transparency. Biden’s lawyers found the initial cache of documents Nov. 2 – less than a week before the midterm elections – and immediately informed the Archives, but not the general public. The discovery of documents did not come out until the media reported it.

Republicans over the weekend also sent a letter to White House chief of staff Ron Klain, demanding the visitor logs from Biden’s Wilmington home. The request appears aimed at equalizing the documents case at Mar-a-Lago, where numerous guests, including foreign nationals, are present for events and dinners.

In some cases, documents were stored between beach chairs and umbrellas in storage rooms close to where outside guests were partying, The New York Times reported in December. Biden’s documents, from what the white House has disclosed, were in a locked cabinet at the Biden Penn Center and a locked garage at his home, which is not open to the public at large.

The White House said Monday it does not keep visitor logs for Biden’s Delaware home, since it is a private residence. The Biden administration does release visitor logs for the White House, something the Trump administration did not do.

In the end, party ID may trump a side-by-side analysis of the facts of each situation. In September, a Marquette University Law School poll found that 61% of Republicans and 7% of Democrats, did not believe Trump had classified documents at his Mar-a-Lago home.

That was weeks after the Justice Department released photos showing documents with bright red “top secret” markings on the covers.