Why Trump will stand trial for handling of documents but Biden won’t

Classified documents were found in a damaged cardboard box in President Joe Biden’s cluttered Delaware garage, near where golf clubs hung on the wall. A photo in former President Donald Trump’s indictment, meanwhile, shows stacks of boxes filled with documents under a chandelier in an ornate Mar-a-Lago bathroom.

In Mr. Biden’s case, special counsel Robert Hur, a former U.S. attorney for Maryland nominated by Mr. Trump, concluded in a report released Feb. 8 that the president should not face criminal charges, despite finding evidence that Mr. Biden willfully retained classified information. Mr. Trump, on the other hand, is scheduled to stand trial on charges alleging he hoarded classified documents at his Florida estate and thwarted government efforts to get them back.

Mr. Trump, who has denied any wrongdoing in the case brought by special counsel Jack Smith, slammed the decision not to charge Mr. Biden, saying: “THIS IS A TWO-TIERED SYSTEM OF JUSTICE!” Mr. Biden, late Feb. 8, angrily lashed out at Mr. Hur for unflattering characterizations of his memory in the report and said he never shared classified information.

At look at the similarities and differences between the Mr. Biden and Mr. Trump investigations:

What kinds of documents are we talking about?

Biden documents: FBI agents found classified documents about Afghanistan in Mr. Biden’s Delaware garage in 2022, along with drafts of a handwritten memo Mr. Biden sent to President Barack Obama to persuade Mr. Obama not to send more troops into the country, Mr. Hur’s report said.

In an office and basement den in the Delaware home, agents also found notebooks with classified information that Mr. Biden wrote on during briefings with Mr. Obama and in White House Situation Room meetings, the report said. Investigators said the notebooks included national security and foreign policy information that touched on “sensitive intelligence sources and methods.” Mr. Hur found that on at least three occasions during interviews with his ghostwriter, Mr. Biden read aloud from classified parts from his notebooks “nearly verbatim.”

Trump documents: Prosecutors have alleged that Mr. Trump stored hundreds of classified documents in boxes as he packed to leave the White House in 2021. After an attorney for Mr. Trump told the FBI that there were no more classified documents at Mar-a-Lago, the FBI searched the property in August 2022 and found more than 100 documents with classified markings, according to his indictment. Each of the 32 counts of willful retention of national defense information Mr. Trump is charged with pertains to a specific classified document found at Mar-a-Lago that was marked “SECRET” or “TOP SECRET.” Topics addressed in the documents include details about U.S. nuclear weapons and the nuclear capabilities of a foreign country.

Why wasn’t Mr. Biden charged?

Mr. Hur concluded there is not enough evidence to convict Mr. Biden of “willfully” retaining the Afghanistan documents or the notebooks. When the Afghanistan documents were found in the garage in 2022, Mr. Biden was allowed to have them because he was president at the time, the report said. To bring charges, Mr. Hur said prosecutors would have to rely on a comment that Mr. Biden had made to his ghostwriter in 2017 – when Mr. Biden was a private citizen and living in Virginia – that he had “just found” classified documents downstairs.

But Mr. Hur said Mr. Biden could convince some jurors his actions weren’t willful by arguing, for example, that he forgot about the documents shortly after finding them in 2017. It’s also possible the Afghanistan documents were never in the Virginia home at all, but were accidentally kept without Mr. Biden’s knowledge in Delaware since he was vice president, Mr. Hur concluded.

Mr. Hur also cited limitations with Mr. Biden’s memory and the president’s cooperation with investigators that “could convince some jurors that he made an innocent mistake.” The report described the president as “someone for whom jurors will want to identify reasonable doubt.”

“We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory,” the report said. “It would be difficult to convince a jury that they should convict him – by then a former president well into his eighties – of a serious felony that requires a mental state of willfulness.”

Regarding the notebooks containing classified information, Mr. Hur concluded that Mr. Biden could plausibly argue if there were a trial that he believed that the notebooks were his personal property and he was allowed to take them home.

“During our interview of him, Mr. Biden was emphatic, declaring that his notebooks are ‘my property’ and that ‘every president before me has done the exact same thing,’ that is, kept handwritten classified materials after leaving office,” the report said.

Other classified documents found at the Penn Biden Center, Mr. Biden’s Delaware home, and among Senate papers at the University of Delaware “could plausibly have been brought to these locations by mistake,” Mr. Hur concluded.

What have prosecutors said in Mr. Trump’s case?

Mr. Trump is accused of not only hoarding classified documents at Mar-a-Lago, but trying to hide them from investigators and working to block the government from clawing them back. Prosecutors have alleged that Mr. Trump showed off the documents to people who did not have security clearances to review them and enlisted others to help him hide records demanded by authorities.

Mr. Hur’s report says the differences between the two cases are “clear.” Unlike Mr. Biden – who cooperated with investigators, agreed to searches of his homes, and sat for a voluntary interview – the allegations in Mr. Trump’s case present “serious aggravating facts,” Mr. Hur wrote.

“Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite,” the report said.

For instance, prosecutors say, after the Justice Department issued a subpoena for the records in May 2022, Mr. Trump asked his own lawyers if he could defy the request and said words to the effect of, “I don’t want anybody looking through my boxes.”

“Wouldn’t it be better if we just told them we don’t have anything here?” one of his lawyers described him as saying, according to the indictment.

Prosecutors allege that during the July 2021 meeting at Bedminster, Mr. Trump also waved around the classified attack plan to his guests. “This is secret information,” he said, according to a recording prosecutors have cited, claiming that, “as president I could have declassified it” but hadn’t.

Prosecutors have also accused Mr. Trump of scheming with his valet, Walt Nauta, and a Mar-a-Lago property manager, Carlos De Oliveira, to try to conceal security camera footage from investigators after they issued a subpoena for it. Video from the property would ultimately play a significant role in the investigation because, prosecutors said, it captured Mr. Nauta moving boxes of documents in and out of a storage room – including a day before an FBI visit to the property. The boxes were moved at Mr. Trump’s direction, the indictment alleges.

This story was reported by The Associated Press.