The risk of prosecution for the Biden and Trump documents differ due to cooperation

 

Two presidents. Two tranches of classified documents. Two special counsel investigations. But the similarities in the cases between President Biden and President Trump seem to diverge sharply when it comes to important elements of the law prohibiting the mishandling of state secrets.

Biden came under fire after it was revealed that his staff had been reporting to authorities since November about classified documents found both in the office he used after his tenure as vice president and at two locations in his Delaware home.

The situation has been compared to the Trump investigation, whose Florida home was ransacked after he failed to fully comply with repeated requests for the return of presidential documents, including about 300 classified documents that were eventually found.

Like Trump, the Biden saga may be linked to the Espionage Act, which prohibits the deliberate withholding of national defense information. But prosecutions, which require demonstration of intent, are less likely when the subject notifies and cooperates with the authorities.

“As soon as he was told that he [classified documents]what happened next? And it’s big, big, big there’s a big difference here,” said Kel McClanahan, executive director of the National Security Advisers, a nonprofit law firm specializing in national security law.

“Once they can prove that you know you have the papers, what’s next? Donald Trump fights you and fights you and fights you and fights you and eventually the FBI has to find him. Joe Biden immediately turns them over and informs you that he has things that you did not even know were missing.

Many of the facts currently known about the case were revealed by Attorney General Merrick Garland when he announced the appointment of Special Counsel Robert Hur, the former Trump-appointed U.S. Attorney, to oversee the case. Garland noted that Biden’s team initially notified the National Archives of the opening on Nov. 2, finding additional documents on Dec. 20 and Thursday.

In response to Gur’s appointment, Biden’s team seemed to call for the need to show that the documents had been intentionally deleted or retained.

“As the president said, he takes classified information and materials seriously, and as we said, we have cooperated since we informed the Archive that a small number of documents were found, and we will continue to cooperate.” – Richard Sauber, This is stated in the message of the special adviser to the president.

“We are confident that a thorough review will show that these documents were lost inadvertently, and the president and his lawyers immediately responded to the discovery of this error,” he continued.

Experts say it’s not just a matter of whether the documents were seized intentionally, but also whether they were intentionally kept.

“Intention matters completely and is the essential difference in the two cases. More precisely [it’s] not the intention to take the documents home or anywhere else — although that will certainly be a factor — it is actually the intention to keep the documents after their return has been requested,” said Mark Zaid, a lawyer who specializes in national security law.

Ensuring the security of classified material removed during Trump’s handover has proven to be more of a challenge for authorities.

The archive requested the missing documents of the President just months after Trump left office, but ultimately received them only a year after Biden’s inauguration. Finding secret records among the trenches, The archive referred the case to the Department of Justice (DOJ), which initiated its own investigation. After writing back and forth, the department issued a subpoena for the records, asking Trump’s legal team to confirm that all classified documents were returned upon receipt of additional records so marked.

After receiving evidence that other classified documents may be in the property, the FBI obtained a search warrant, finding about 100 more documents from Mar-a-Lago.

These details, as well as the apparent attempts to move the materials to the property when interacting with law enforcement, led to the Espionage Act being included in the property search warrant along with the obstruction of justice law.

A federal judge has since ordered Trump’s team to search his other properties for classified records.

In addition to 300 secret records, over 10,000 presidential records have also been found at Mar-a-Lago.

It’s unclear how many classified records have been unearthed since Biden’s time as vice president. The first shipment found at the Penn Biden Center for Diplomacy and Global Engagement was reported to include about 10 documents, but the White House only said that a “small number” was found between the center and Biden’s house.

Cases of “leakage” are not uncommon – when secret documents are accidentally deleted by federal employees. However, such matters are usually handled administratively for current civil servants, with serious consequences, especially after the first incident.

“They may be suspended from work, they may be given a warning, or they may end up losing their work permit and job,” Zaid said.

“You can ruin your career – what’s left of it – in that case. This is important. It’s just not considered criminally,” he added.

But when former officials report stray documents, it’s up to the Justice Department to balance prosecution decisions with a desire to encourage those with the records to come forward and return them.

“Unintentionality has legal significance because if it were truly unintentional, the elements of the charge under the Espionage Act would not be met — the requirement of intent. But it also matters, as Justice Department precedent decides which cases make sense and which don’t. Looking at this precedent, the Justice Department has never prosecuted anyone for inadvertently taking home a classified document,” said Brian Greer, a former CIA attorney.

Greer stressed that it’s not a Get Out of Jail Free card on its own, but with a “borderline case like this” it could be a determining factor.

“The DOJ wants to curb bad behavior and encourage good behavior through policy. And if someone is behaving well, which in this case means reporting it immediately, they will be less likely to be prosecuted because otherwise it creates a deterrent to reporting – especially in cases where the hold was unintentional.”

For now, special prosecutors will continue their investigation into Trump and Biden, but it’s unclear when they’ll come to their conclusion.

While Gur will oversee the narrower case, Special Counsel Jack Smith is overseeing the Mar-a-Lago investigation, along with the January 6, 2021 investigation, scheduled shortly after Trump announced his 2024 bid for the post.

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Zaid said the dual appointment is meant to ensure fairness and independence for both men.

“It is important to ensure that … both Biden and Trump are treated equally. That is what the appointment of the Special Adviser is aimed at,” he said.

“Where the facts go, it wouldn’t surprise me if they lead to something else, but that doesn’t mean the procedure was different.”

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