Last August, the FBI searched former President Donald Trump's home at Mar-a-Lago, his Palm Beach resort, looking for classified documents. Last Friday, the FBI searched President Joe Biden's home in Wilmington, Delaware, looking for classified documents.
Both searches were unprecedented, and both turned up secret material stored in unauthorized locations. While the circumstances that led to the searches were starkly different, the broad parallels between the two investigations, each of which has been assigned to a special counsel, complicate already fraught decisions about whether Trump's retention of government records justifies criminal charges. They also raise the question of how common such sloppiness is and what it says about a system that is ostensibly aimed at protecting national security.
The 13-hour search of Biden's house, which the president's lawyers suggested after it became clear that no one had any idea how many secret records he may have retained or where exactly they were located, discovered half a dozen classified documents, including material dating to his time as a U.S. senator. That was in addition to "roughly 10" classified records discovered in Biden's former think tank office last November, "a small number" found in the garage of his Wilmington house and an adjacent room in December, and several more found in his home library on January 11 and 12.
Two weeks ago, after CBS News broke the story of the documents in Biden's former office, the president said he had been "surprised" to learn about those records last fall. Last Thursday, after news reports revealed that additional classified material had been found at his house in Wilmington, Biden minimized the import of that development.
"We found a handful of documents were filed in the wrong place," Biden told reporters. "We immediately turned them over to the [National] Archives and the Justice Department….I think you're going to find there's nothing there….There's no there there."
At that point, it was clear that the number of classified documents "in the wrong place" exceeded "a handful." And the next day, the FBI found six more. Contrary to Biden's assurances, there was something there: a pattern of carelessness belying Special Counsel to the President Richard Sauber's claim that Biden "takes classified information and materials seriously."
Sauber emphasized that Biden's transgressions were unintentional. "We are confident that a thorough review will show that these documents were inadvertently misplaced," he said, "and the president and his lawyers acted promptly upon discovery of this mistake."
Trump, by contrast, took thousands of government documents, including 325 marked as classified, when he left office, and he persistently resisted returning them, apparently because he considered them his personal property. That resistance included months of wrangling with the National Archives and Records Administration and incomplete compliance with a federal subpoena, which culminated in the FBI's August 8 search of Mar-a-Lago.
Unlike last week's visit to Biden's house, the Mar-a-Lago search was not consensual. It was authorized by a warrant that a magistrate judge issued after concluding that there was probable cause to believe the FBI would find evidence that Trump or his representatives had committed federal crimes. Specifically, the FBI cited statutes that make it a felony to remove or conceal government documents, retain "national defense information," and obstruct a federal investigation.
So far there is substantially more evidence to support an inference of criminal intent in Trump's case, although proving that is by no means a slam dunk. If Biden "inadvertently" mishandled the government's secrets, he would not be guilty of "willfully" retaining "national defense information." And the proactive cooperation that Sauber highlights, unlike Trump's stubborn foot-dragging and possibly deliberate defiance of a federal subpoena, does not look like obstruction.
Federal law also makes it a felony to permit the removal of national defense information from "its proper place of custody" through "gross negligence." While that seems like a more apt description of what Biden did, the Justice Department has previously declined to prosecute former federal officials under that provision for careless handling of classified material.
Alberto Gonzales, for example, improperly took classified material, including top-secret notes deemed "sensitive compartmented information," home with him while serving as President George W. Bush's attorney general. According to a 2008 report from the Justice Department's Office of the Inspector General, Gonzales "mishandled classified materials regarding two highly sensitive compartmented programs." He "took his classified handwritten notes home and stored them there for an indeterminate period of time." He also "stored other highly classified documents about the two compartmented programs in a safe at the Department that was not located in a SCIF [sensitive compartmented information facility]."
The Justice Department nevertheless concluded that criminal charges were not appropriate. It considered two potentially relevant statutes: 18 USC 924, which covers someone who "knowingly removes" classified material, and 18 USC 793 (f)(1), which addresses "gross negligence" in the handling of "national defense information."
In a recent Just Security essay, New York University law professor Andrew Weissman and two co-authors argue that the Gonzales precedent bodes well for Biden. "Because DOJ must seek to treat like cases alike," they write, "the Gonzales declination appears to be a precedent that will weigh heavily in favor of DOJ closing its Biden investigation without a charge."
The same could be said of the FBI's conclusion that it was not appropriate to prosecute Hillary Clinton for using a private email server as secretary of state. While then–FBI Director James Comey criticized Clinton's "extremely careless" handling of "very sensitive, highly classified information," he said prosecuting her would be inconsistent with the Justice Department's past practices.
"Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case," Comey said. "All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here."
As Reason's J.D. Tuccille notes, people in positions of power seem to get softer treatment even when they intentionally divulge government secrets. But the distinction that Comey drew between carelessness and "willful mishandling" helps explain why people like Gonzales and Clinton escape prosecution while whistleblowers who deliberately leak classified information do not. Applied consistently, that distinction should rule out prosecuting anyone guilty of similar lapses, regardless of his rank, fame, or political influence.
Contrary to Biden's claim, however, none of this means "there's no there there." He cannot consistently maintain that the classification system is vitally important to protecting national security and that "inadvertently" violating its rules is no big deal, a mere clerical error involving documents that were "filed in the wrong place." That certainly was not Biden's take on Trump's handling of classified records, which he called "totally irresponsible" a couple of months before his own trove was discovered.
Even granting the differences between what Trump did and what Biden did, in terms of both volume and attitude, the only way Biden can escape similar criticism is by arguing that it does not really matter if classified material he handled ended up where it was not supposed to be, intermingled with personal records and mementos. But if that's true, either because the documents were classified for no good reason or because they remained classified long after the original rationale no longer applied, the whole system begins to look like a joke.
Biden's retention of classified material from his time as vice president went unnoticed for six years, while one or more secret documents that he came across as a senator remained in his private possession more than twice as long. How many classified records might be discovered in the homes or offices of other former federal officials if anyone bothered to search for them? And do those overlooked documents pose a real threat to national security, or only to the idea that the classification system should be taken seriously?