The Difference Between Two Scandals

Over the last couple weeks, a new scandal arose that echoed the trumpian scandals of last August, where reports emerged of how classified documents - from his tenure as Vice President under Obama - were found in President Biden's possession. As Becky Sullivan and Elena Moore note over at NPR:

President Biden is facing a Department of Justice investigation after his lawyers found classified documents at his Delaware residence and an office in Washington, D.C.

They were found in multiple instances, with a White House lawyer announcing on Saturday that five more pages had been found at Biden's home.

On Thursday, Attorney General Merrick Garland appointed former Justice Department official Robert Hur to lead the DOJ probe.

"This appointment underscores for the public the department's commitment to both independence and accountability in particularly sensitive matters, and to making decisions indisputably guided only by the facts and the law," Garland said Thursday.

The announcement came just a few days after news broke that classified documents had been found at Biden's private office less than a week before the midterm elections in November — a discovery that led the DOJ to launch an initial inquiry.

This is all coming on the heels of the large-scale investigation into donald trump's mishandling - in some regards, the outright theft - of classified and other White House documents he took with him when he left office in January 2021. Indeed, trump's political and media allies quickly jumped on this story, attacking Biden for hypocrisy at the least and criminal misdeeds at the worst:

Critics of Biden, including many Republicans, have seized on the revelations to raise new complaints about the Biden administration's handling of the Trump classified document saga, including the FBI raid of Mar-a-Lago.

"Another faux pas by the Biden administration by treating law differently based upon your political beliefs. Treats President Trump one way but treats President Biden a whole different way," said Republican House Speaker Kevin McCarthy in a press conference Thursday...

Republicans have already vowed to use their new House majority to probe Biden's handling of the classified documents and how federal agencies responded.

On Friday, Republican House Judiciary members sent a letter to the attorney general announcing their inquiry into the handling of the documents and the appointment of Hur. Rep. Jim Jordan, R-Ohio, chair of the House Judiciary Committee, and Rep. Mike Johnson, R-La., demanded "all documents and communications" between the DOJ, FBI and White House related to the "mishandling of the classified documents" and the appointment of the special counsel.

So as this scandal turns political, are the Republicans right to claim unfair treatment?

No. There are clear differences between what's happening with Biden and what's happening with trump. Above all, trump's own misconduct in his mishandling of documents:

In Trump's case, the National Archives was the first to identify the missing documents and request their return.

Trump initially resisted returning them, and his lawyers at times misled federal investigators. After months of back-and-forth between the government and Trump aides, 15 boxes of documents were returned in January 2022. According to the FBI, the boxes included 184 classified documents, including 25 marked "Top Secret," as well as others denoted with labels indicating they contained national security information, such as "FISA." But more documents still remained at Mar-a-Lago, and ultimately the FBI raided the resort in August to retrieve the rest.

By contrast, Biden's team appears to have found a smaller number of documents, and returned them to the federal government promptly.

There's no evidence yet if Biden's people were guilty of any intentional removal of classified documents, but they are clearly abiding by the laws to ensure those documents are returned and no others left out there. trump and his people are kicking and screaming and refusing to respect the laws at all.

The scale of trump's scandal is far greater than anything yet pinned to Biden, and yet trump and the Republicans - looking for any excuse to punch Biden and hurt his 2024 re-election chances - would have us believe trump is a victim and Biden the crook. That's nowhere near the truth, and nowhere near the severity of damage trump committed, according to Donald Ayer, Mark S. Zaid, and Dennis Aftergut over at The Atlantic (paywall):

Even if, at some point, evidence of potential criminal conduct develops in the Biden case, in no proper prosecutorial universe should that affect or deter Special Counsel Jack Smith’s investigation of Trump. In the unlikely event that both men did commit crimes, that would be no reason not to prosecute Trump—or Biden, for that matter, once he is out of office. No person is above the law.

But these two cases are not equivalent. For starters, let’s consider the two stories through the lens of the statutes cited in the Mar-a-Lago search warrant approved by a federal court.

Individuals violate the Espionage Act when, among other things, they willfully retain national-defense documents and fail to return them to a proper government official upon request. In November, Biden’s personal lawyer discovered the classified documents and returned them to the government without a request. So that statute does not apply. Biden has denied knowing that he had the documents.

The contrast with Trump is stark. The National Archives and Records Administration first asked him to return missing documents in May 2021. The following January, Archives officials retrieved 15 boxes of government records, and on June 3, 2022, his lawyer signed a sworn statement that all documents responsive to a grand jury subpoena were being returned after a “diligent” search...

In August, a federal court was provided evidence that the lawyer’s statement was likely false, and the court issued the search warrant that allowed the FBI to seize upwards of 11,000 documents from Mar-a-Lago. They included more than 70 documents marked “Secret” or “Top Secret,” some apparently containing information whose disclosure could conceivably endanger the lives of American intelligence sources overseas.

The apparent obstruction of justice—with evidence pointing to Trump’s direct involvement—makes up the serious misconduct here, more serious than a former president simply having removed documents from their proper place. Trump’s lawyers repeatedly asserted in court that the Mar-a-Lago documents were “personal,” effectively admitting that Trump took them and kept them.

The centrality of concealment to the case is made even clearer by the second statute cited in the Mar-a-Lago affidavit. It subjects to prosecution anyone who “knowingly … conceals [or] covers up … any record, document, or tangible object with the intent to impede [or] obstruct … the investigation or proper administration of any [federal] matter.”

In short: trump took documents knowingly, and then lied about having those documents, got other people to lie for him, and refused to give up what he had for more than a year, and it all ended up requiring a warrant to search and retrieve those documents that could well be harmful to our nation's security. 

Both Biden and trump can end up in trouble violating the Presidential Records Act, but trump is on the hook for Espionage and Obstruction charges on top of that. The fact that Biden and his people are willingly returning the documents to National Archives without a fight lessens the possibility of getting charged on the Presidential Records Act, as the special counsel may well determine the matter settled. In trump's case, the open contempt he's displayed towards the Records Act would establish a good reason to charge him for violating it (the special counsel investigating trump may have to include those charges to justify the espionage and obstruction charges).

There's other cases that establish how intent to conceal and remove documents is a serious matter threatening trump's situation (back to the Atlantic article):

In 2005, Sandy Berger, a former national security adviser to President Bill Clinton, pleaded guilty to unlawfully removing government documents. In 2003, years after his government service, he had gone to the National Archives to review files, and as he left, a staffer spotted what appeared to be paper protruding from Berger’s pant leg. Stuffing documents into his trousers to hide them, along with his later attempt to throw the records into a construction site, was powerful evidence of willful and unlawful intent.

In 2015, David Petraeus, a former general and CIA director under President Barack Obama, pleaded guilty to having given his mistress and biographer, Paula Broadwell, classified material that he had improperly retained. Petraeus had falsely attested to having no classified material in his possession. Like documents taken and concealed in clothing, false statements are compelling evidence of a guilty mind and a cover-up.

One of us (Mark S. Zaid) has represented many clients who have accidentally taken classified documents home or unintentionally left them in unsecured environments. Those cases involved no deliberate flouting of law but rather negligent or reckless conduct. These situations are routinely resolved through administrative proceedings, such as suspension or revocation of security clearances or other sanctions short of prosecution.

Those first two stories are similar to trump's misconduct, whereas the third relates much to how Biden is handling things. You can spot the difference there: Intent and getting caught in lies will get you charged; Working with investigators and admitting mistakes will keep you out of courthouses.

It would be nice if the mainstream media would recognize that what's happening to Biden does not excuse what trump did, nor should Biden face the same legal punishments awaiting trump. This is not a Both Sides scandal: trump's misconduct is clearly more dangerous to the national well-being.

I would even argue there's a third scandal at play here, one far greater than anything Biden or trump are directly at fault. We are witnessing repeated failures of national security when it comes to current and previous Presidential administrations concerning the mishandling of classified documents. This is something going back even before 2005, there's been breaches of security - some of them intentional like Dick Cheney's office exposing CIA operatives for partisan retribution - that are happening at the expense of domestic and foreign policies. 

Granted, part of the scandal is how far too many agencies have the power to classify anything as secret, which expands the likelihood of both accidental and intentional taking of documents that people shouldn't be taking. Still, this is all serious harm to both policies and people. If any other special counsels need hiring, AG Garland better have someone investigating how to stop such damaging leaks from happening (again and again). 

I do want both special counsels investigating Biden and trump to do their jobs, do them effectively, and assign fault to those who mishandled our government's classified information. I do hope that Jack Smith, the special counsel investigating trump, reaches the proper conclusion of prosecuting trump for his willful misconduct throughout the whole affair.

And I do hope people recognize that not all scandals are equal. They all depend on the intent - sincere versus scheming - of the persons violating the laws.