The decision to not recommend charges for President Biden following his mishandling of classified records has Republicans complaining about a double standard given the Espionage Act prosecution faced by former President Trump.
But the claims ignore key differences between Biden’s mishandling of records and the conduct that led to Trump being slapped with a 40-count indictment.
The two executives took highly diverging paths in how they cooperated with authorities, behavior that is among a string of details important in a case where demonstrating intent is paramount.
It was a point special counsel Robert Hur noted in a report that was otherwise highly critical of Biden.
“Several material distinctions between Mr. Trump’s case and Mr. Biden’s are clear. Unlike the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts,” he wrote.
“Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite.”
And while Hur concluded Biden willfully kept the records, he also notes “a shortage of evidence” that would stymy any effort to argue that point in court.
The two cases are not without their similarities: Both men appear to have held onto documents as mementos of their time in office.
Biden kept records relating to Afghanistan that documented his opposition to the war in the face of stiff criticism, as well as handwritten notes he called “my property” while speaking to Hur, casting them as akin to diaries.
Trump expressed a similar sentiment when talking to his staff as his lawyer was encouraging him to return the records, calling them “my documents” after boasting of possessing the records and showing them off to various guests.
Both cases also deal with a substantial volume of classified records, though the 300 classified records Trump kept at Mar-a-Lago in Florida far outnumber the more than 50 records with classified markings Biden retained, alongside notebooks he kept detailing his time in office that referenced classified secrets.
But the two men took very different paths in how they approached the investigations, details that matter substantially in Espionage Act cases where it’s essential to prove documents were “willfully” retained.
Biden’s team alerted authorities to the discovery of classified materials in an office space he used after serving as vice president, with the National Archives referring the matter to the Department of Justice. His attorneys later searched his home and also agreed to an FBI search of the Delaware residence, where additional records were found.
Trump repeatedly rebuffed Archives and Justice Department officials for the better part of a year when they sought the records, even failing to fully comply with a subpoena for the return of the classified documents.
He concealed records from his attorney and federal authorities, asking his staff to shuffle the records across his estate in a bid to hide them — producing now-infamous images of them being stored in a Mar-a-Lago bathroom and piled on a ballroom stage.
Republicans see Hur, who was appointed by Trump to serve as U.S. attorney of Maryland, as displaying partisanship in determining no charges were warranted.
“Not only does it demonstrate the president’s recklessness, but exposes a two-tiered system of justice that is indicting one president with politically motivated charges while carrying water for another amid similar allegations,” House Speaker Mike Johnson (R-La.), Majority Leader Steve Scalise (R-La.), Majority Whip Tom Emmer (R-Minn.) and conference Chair Elise Stefanik (R-N.Y.) wrote in a joint statement.
But to Democrats, the report laid bare the strategic error made by Trump by not simply just returning the documents when asked.
“The contrast here is striking,” Rep. Jerry Nadler (D-N.Y.) wrote in a statement.
“If Trump had cooperated with the Department of Justice — instead of lying to investigators, again and again — he might have avoided at least some of the 91 criminal charges currently pending against him.”
Rep. Jamie Raskin (D-Md.) viewed Hur’s comments on the Trump case as indicating the exceptional circumstances that prompted his prosecution.
“As the Special Counsel’s report explicitly notes, there is plainly no comparison here to the conduct of former President Trump. Trump obstructed efforts by the National Archives and law enforcement to recover hundreds of government documents by deliberately hiding them, lying about their whereabouts, and enlisting others to destroy and conceal evidence,” he said in a statement.
Perhaps the biggest barrier to bringing any charges against Biden was concern from Hur that he would be able to mount a strong defense, undercutting the chance of convincing jurors Biden was guilty beyond a reasonable doubt.
One note that suggested Biden would be viewed sympathetically blew up politically.
“At trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory,” Hur wrote. “Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt.”
But Hur identified numerous factors that would make it hard to convince a jury Biden kept the documents intentionally.
In dissecting the Afghanistan documents found in Biden’s garage, Hur described them as being “in a badly damaged box surrounded by household detritus.”
“We do not know why, how, or by whom the documents were placed in the box. We do not know whether or when Mr. Biden carefully reviewed the box’s contents. We do not know why only some of Mr. Biden’s classified Afghanistan memos to President Obama from the fall of 2009 were found in the box, but several other memos he wrote during that time were not,” Hur wrote.
“It remains possible that Mr. Biden lost track of the documents in the nearly eight years that followed, and that he did not know he still had them after leaving office.”
And he noted Biden’s cooperation was a major factor in making it a difficult case to present to would-be jurors.
“His cooperation with our investigation, including by reporting to the government that the Afghanistan documents were in his Delaware garage, will likely convince some jurors that he made an innocent mistake, rather than acting willfully — that is, with intent to break the law — as the statute requires,” Hur wrote.
Charges for Biden — at least in the short term — are not a concern because Hur notes Department of Justice policy bars criminal prosecutions of the president while in office.
But the special counsel also fought claims of politicization in noting Biden’s status did not influence his determination.
“We would reach the same conclusion even if Department of Justice policy did not foreclose criminal charges against a sitting president,” Hur wrote.