The early facts we know from the discovery of “several classified documents from President Joe Biden’s time as vice president” by Biden’s lawyers while packing up his former office at the Penn Biden Center show very little similarity to the discovery and recovery of hundreds of classified documents found to have been kept by former President Donald Trump at his personal residence in Mar-a-Lago. The immediate and transparent actions by Biden’s lawyers make the likelihood of any criminal culpability very low.
The recovery from Trump of highly sensitive documents pertaining to national security—including ones related to nuclear secrets—came after more than a year of requests, negotiations, grand jury subpoenas and meetings between Trump’s representatives, the National Archives and Records Administration, and the Justice Department that culminated in a criminal search warrant being executed on Trump’s home.
That search warrant came only after the DOJ apparently grew alarmed over reports of potential obstruction of justice and the lost trust in representations being made by Trump’s attorneys.
DOJ’s distrust of Trump’s lawyers has only grown worse since the search warrant as they recently asked for Trump lawyers to be held in contempt for failing to comply with a subpoena.
In contrast, Biden’s lawyers notified the National Archives on the same day the documents were found “in a locked closet” and the documents were retrieved by the National Archives the next morning. Biden’s lawyers’ prompt actions displayed a transparency and disregard for political consequences given that they discovered the documents on Nov. 2—only days away from the midterm elections. Importantly, the disclosure by Biden’s lawyers was completely self-initiated—there had been no previous inquiry from the National Archives—and according to reporting by CNN the NARA “came to view the situation as a mistake due to lack of procedural safeguards for documents.” That same month, NARA made a referral to DOJ to look into the matter.
In response to the NARA referral, Attorney General Merrick Garland assigned the United States Attorney in Chicago—John Lausch, who was appointed by Trump—to oversee an investigation. Given that the discovery of the documents occurred in Pennsylvania, it would not normally have been within the jurisdiction of Lausch in Chicago, Illinois. But Lausch is one of two Trump-era U.S. Attorneys who have been held over in the Garland DOJ—the other one is overseeing the Hunter Biden criminal investigation—and as reported by The New York Times, AG Garland apparently sought to assign the investigation to a Trump hold-over because Garland thought it would make the investigation look impartial.
The facts as we know them so far make it highly unlikely that Lausch will find evidence of criminal behavior on the part of Biden and/or his team given the lack of any effort to conceal or obstruct, which would be critical in finding any criminal intent.
Even instant political spin put forth by Republicans like Rep. Bryon Donalds and the newly minted speaker of the House, Kevin McCarthy, focus entirely on using the Biden documents matter as a defense of Trump. In an interview on CNN, Donalds clung to the idea that Trump as president had the power to declassify documents while Biden, as a then-vice president, did not—in complete ignorance of the fact that even now Trump’s lawyers have failed to identify any documents that Trump supposedly declassified.
One question now will be whether AG Garland chooses to appoint a special counsel following the preliminary report to be received from Chicago Attorney Lausch.
In the likely event that Lausch finds no grounds for potential criminal charges, Garland may find it hard to resist appointing a special counsel in the hope of avoiding political criticism for a decision to investigate and potentially prosecute Trump while declining to do so with Biden. But evidence is what should drive prosecutorial decisions and Garland needs to do just that without concern for the political fallout.