Special counsel says Biden likely violated the law by retaining classified documents but what Trump did was much worse

Donald Trump, on the left; Joe Biden, on the right.

Left: Republican presidential candidate former President Donald Trump speaks at his Mar-a-Lago estate Thursday, Feb. 8, 2024, in Palm Beach, Fla.; Right: U.S. President Joe Biden is departing the South Lawn of the White House in Washington, D.C., United States, on February 8, 2024. (AP Photo/Rebecca Blackwell; Photo by Kyle Mazza/NurPhoto via AP)

President Joe Biden “willfully retained and disclosed classified materials after his vice presidency when he was a private citizen,” but the similar document scandal involving former President Donald Trump was markedly worse, according to special counsel Robert Hur.

In a 388-page report released Thursday, the U.S. Department of Justice declined to bring charges against Biden over his retention and sharing of “marked classified” documents about U.S. military and foreign policy in Afghanistan and handwritten notebooks about other matters “implicating sensitive intelligence sources and methods.”

And, to justify the lack of charges, at least to some degree, Hur references the 45th president’s classified document woes.

“With one exception, there is no record of the Department of Justice prosecuting a former president or vice president for mishandling classified documents from his own administration,” the report reads. “The exception is former President Trump.”

The report makes clear that it does not seek to seriously interrogate the classified documents-related charges against Trump — though the former president’s name is mentioned by Hur at least 37 times.

In the 13th chapter, in a section about “historical practice,” the report says “several material distinctions” between Biden’s and Trump’s alleged violation of classified documents laws “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,” the Hur report reads. “Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite.”

The report quickly takes stock of the allegations in the 37-count indictment filed against Trump by special counsel Jack Smith — with a focus on allegations that the ex-president “not only refused to return documents for months” but “also obstructed justice by enlisting others to destroy evidence and then to lie about it.”

Biden, on the other hand, “turned in classified documents” when requested by the National Archives and Department of Justice, consented to searches of his homes, “sat for a voluntary interview,” and “cooperated with the investigation” in other ways, the report says.

The report, however, cites Trump’s classified document scandal as evidence that Biden knew he was also violating the law. An entire section in the lengthy document is dedicated to Biden’s commentary about the allegations that Trump retained classified documents.

From the report, at length:

Some evidence also suggests Mr. Biden knew he could not keep classified handwritten notes at home after leaving office. Mr. Biden, who had decades of experience with classified information, was deeply familiar with the measures taken to safeguard classified information and the need for those measures to prevent harm to national security. Asked about reports that former President Trump had kept classified documents at his own home, Mr. Biden wondered how “anyone could be that irresponsible” and voiced concern about “[w]hat data was in there that may compromise sources and methods.”

“Biden’s emphatic and unqualified conclusion that keeping marked classified documents unsecured in one’s home is ‘totally irresponsible’ because it ‘may compromise sources and methods’ applies equally to his own decision to keep his notebooks at home in unlocked and unauthorized containers,” the report reads.

The Hur report, while not charging the sitting president, says he violated federal law related to classified documents.

“Biden explained that, despite his staff’s views to the contrary, he did not think he was required to turn in his notecards to the National Archives-where they were stored in a SCIF-and he had not wanted to do so,” the report reads. “At trial, he would argue plausibly that he thought the same about his notebooks. If this is what Mr. Biden thought, we believe he was mistaken about what the law permits.”

Trump’s administration is mentioned in another section of the report which purports to show why a federal jury would likely approve of charging Biden for keeping certain documents in his possession that had less of a claim to classified status. This illustrative section shows how the federal document classification scheme is somewhat amorphous and subject to interpretation and discretion.

Hur notes the “large-scale and well-known changes to policy, governance, and leadership style that occurred in the White House from the Obama administration to the Trump administration.”

In lieu of such changes, Hur says it is “unlikely a jury would conclude that, upon the onset of the Trump administration, the foreign-policy views of the Obama-era vice president and his advisers expressed in documents A1 and A2 remained information relating to the national defense that would warrant a felony criminal charge” against Biden.

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Special counsel says Biden likely violated the law by retaining classified documents but what Trump did was much worse

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Special counsel says Biden likely violated the law by retaining classified documents but what Trump did was much worse

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