How do the classified documents cases of Donald Trump and Joe Biden compare?

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As former President Donald Trump prepares to face charges related to his handling of classified documents, some supporters have complained that Trump was charged with a special counsel while President Joe Biden was away.

Information about the Bidens’ documents broke on January 9 when CBS News reported that Biden’s lawyers had discovered the documents, some with classification markings, in a locked cabinet two months ago. that’s the past. The lawyers said they found the documents while cleaning out the Bidens’ post-vice presidential office at the Penn Biden Center for Diplomacy and Global Engagement in Washington, DC.

On the eve of Trump’s arraignment, Sen. Ted Cruz, R-Texas, “Joe Biden did the same thing, and the DOJ doesn’t care!”

The two situations are similar in some ways but only up to a point, experts told PolitiFact.

The Justice Department has appointed a special counsel to investigate the Bidens’ handling of classified documents, as the department did for Trump. The investigation into Biden is underway, with bits and pieces of anonymously sourced information becoming public. The department has not released formal information about its process, as is common for ongoing investigations.

In contrast, the FBIs Trump investigation began earlier, in March 2022, with a grand jury convened the following month, and reached the indictment stage on June 8.

Bradley Moss, a Washington, DC, attorney who works on national security cases, told PolitiFact that there are “borderline similarities” between the cases.

“Both Mr. Trump and President Biden had documents with classification marks stored in unauthorized locations while they were private citizens,” Moss said. “That is not allowed and is a violation of federal law.”

Beyond that, the Trump case sets a high bar for seriousness and has some extraordinary circumstances that the Biden case lacks so far, particularly the failure to turn over documents once they were discovered.

Here are factors in the Trump case to keep in mind as we hear comparisons to the ongoing Biden investigation.

Trump is charged with 31 counts of “intentionally withholding national defense information.” Under this provision, anyone who “willfully retains” a covered document “and “fails to deliver it to an officer or employee of the United States entitled to receive it” can be fined or imprisoned if convicted.

Voluntary retention “implies knowing retention as a reduction of a duty to restore it,” said James Robenalt, a partner at the law firm Thompson Hine LLP who studies abuse of power cases.

An earlier example of a senior government official mishandling classified documents involved Hillary Clinton, the former secretary of state who was investigated while running for president in 2016. When then-FBI Director James Comey declined to prosecute Clinton for sending classified information on her private email server, she cited her intent, saying the investigation “found no clear evidence that Secretary Clinton or her associates intended to violate the laws governing handling of classified information.”

The Justice Department “just didn’t bother to prosecute pure accidental mishandling,” Moss said.

“When they pursue prosecution, there is evidence of intent and/or obstruction. Right now, there is no evidence of President Biden having the necessary intent or having obstruction. Of course, that’s what the special counsel is investigating in that matter, and those facts can always change.”

Beyond the allegations of “deliberate delay,” Trump is also charged with a conspiracy to obstruct justice by concealing and concealing documents, withholding a document from a grand jury, falsely concealing a document or record from to a grand jury; and withholding a document from a federal investigation.

Among other things, the accusations suggested Trump that his attorney made false declarations to the FBI and grand jury and instructed an employee, Walt Nauta, to hide the boxes by moving the this.

So far, there has been no public indication that Biden has failed to cooperate with law enforcement.

The Bidens’ team said lawyers immediately notified the National Archives, which obtained the materials on Nov. 3.

“The White House is cooperating with the National Archives and the Department of Justice regarding the discovery of what appear to be Obama-Biden Administration records, including a small number of documents with classified markings,” Richard Sauber, special adviser to Biden, said in a statement in January.

In Jan. 11, news broke that a second set of classified documents had been discovered at the Bidens’ Wilmington, Delaware, home, in a garage and a nearby room. The number of documents is not specified.

Sauber said, “We have worked closely with the Justice Department throughout its investigation, and we will continue that collaboration with the special counsel. We are confident that a thorough examination will show that these documents were misplaced, and that the president and his lawyers acted immediately upon discovering this error.

An additional trove of documents, covering Biden’s years in the Senate, was donated to the University of Delaware. CNN reported that the FBI conducted two searches of these papers, conducted with the consent and cooperation of the president’s legal team.

In the Trumps’ case, 38 documents with classified markings were recovered as a result of a grand jury subpoena, and an additional 102 documents with classified markings were discovered in a search of Mar-a-Lago.

Little is known about the documents at issue in the Biden case. Saubers’ statement used the term “small” to describe the number of classified documents in question, and news reports characterized it as about a dozen. But law enforcement officials did not provide details.

Even by the standards of classified documents, some of those at issue in the Trump case include some of the highest levels of classification.

SCI, or “sensitive compartmented information,” must be used within a special secure facility called a SCIF. Another classification, NOFORN, cannot be disclosed to foreign nationals, while those with a different label, FVEY, can only be shared with other members of the “five eyes” intelligence group that includes the US, Australia, Canada, New Zealand and the United Kingdom. Another classification known as SAP, or “special access programs,” is particularly sensitive and requires special permissions to view.

Nothing is known yet about the classification levels discussed in the Bidens’ documents.

In at least two cases, the indictment alleges that Trump shared documents with individuals who did not need security clearance to view them.

Both meetings took place at Trumps golf club in Bedminster, New Jersey, in the summer of 2021. In one case, the indictment says, Trump “demonstrated and described a plan of attack” to a writer. , publisher and two staff members. On the other occasion, Trump showed a representative of his political action committee “some type of map related to a military operation,” the indictment said.

There is no indication yet that Biden improperly shared any of the documents with people without security clearances.

The special counsel’s lawsuit details how closely Trump oversaw the document withholding process and how he involved Nauta and other Mar-a-Lago employees as well as his lawyers.

In one case, the indictment cited a Trump lawyer as saying that Trump told him to take classified documents he found at Mar-a-Lago to his hotel room, then made a “plucking motion,” which the lawyer understood that to mean “if there’s anything really bad in there, like, you know, pluck it out,” according to the lawyers’ contemporaneous notes cited in the indictment.

The extent of Biden’s personal involvement in the classified documents is not yet known.

The indictment does not address why Trump might have acted as he did. Legal experts emphasize that securing a conviction in these cases does not require the prosecution to offer the jury a motive.

“We care whether Trump or Biden know they have these documents, but that’s intent, not motive,” said Ric Simmons, a law professor at Ohio State University. “Motive is why people do what they do, and that doesn’t matter in law.”

Staff Writer Maria Ramirez Uribe contributed to this article.

This fact check was originally published by PolitiFact, part of the Poynter Institute. See resources for this fact check here.

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