Trump, Biden classified documents cases differ in key ways. Here’s how.

PolitiFact | One aspect that needs to be sorted out in both cases is motive.
President Joe Biden takes questions from reporters on classified documents as he delivers remarks on the economy and inflation in the Eisenhower Executive Office Building on Thursday in Washington, D.C.
President Joe Biden takes questions from reporters on classified documents as he delivers remarks on the economy and inflation in the Eisenhower Executive Office Building on Thursday in Washington, D.C. [ KEVIN DIETSCH | Getty Images North America ]
Published Jan. 14|Updated Jan. 16

Soon after news broke that classified documents had been found in an office belonging to President Joe Biden at a Washington, D.C.-based think tank, former President Donald Trump and his allies compared it with the classified files seized at Trump’s Mar-a-Lago residence in Florida.

“When is the FBI going to raid the many homes of Joe Biden, perhaps even the White House?” Trump posted Jan. 9 on his social media platform, Truth Social. “These documents were definitely not declassified.”

“Joe Biden took classified documents from the White House when he was Vice President,” U.S. Rep. Marjorie Taylor Greene, R-Ga., posted on Twitter. “The VP does NOT have the power to declassify, only POTUS. Joe Biden stole classified documents. This is a very serious crime. DOJ & NARA can’t sweep this under the rug AND persecute Trump.”

The accusations intensified after news outlets reported that a second small group of documents with classified markings were found at Biden’s home in Wilmington, Delaware, some in a room and others in a garage. On Jan. 12, Attorney General Merrick Garland announced that he had appointed Robert Hur as special counsel in the Biden documents case. He had earlier named Jack Smith as special counsel in the Trump documents case.

This is an evolving story, and many details are still unknown, including the documents’ contents and classification level. But what is known so far suggests that the two situations are not equivalent.

Here is what we know.

Biden’s documents

Information about Biden’s documents broke Jan. 9 when CBS News reported that Biden’s lawyers on Nov. 2 discovered documents, some with classification markings, in a locked closet. They said the finding was made as they were cleaning out Biden’s post-vice presidential office at the Penn Biden Center for Diplomacy and Global Engagement in Washington, D.C.

The White House confirmed the story. Biden’s team said the attorneys promptly notified the National Archives, which took the materials Nov. 3. The Justice Department is reviewing the documents.

“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 counsel to Biden, said in a statement.

Speaking Jan. 10 at a news conference during a visit to Mexico City, Biden said he was “surprised to learn there were any government records taken to that office.”

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Biden started the Washington, D.C.-based think tank as an affiliate of the University of Pennsylvania, where Biden held a part-time position after his vice presidency. He used the office periodically from mid-2017 until he launched his 2020 presidential campaign in April 2019.

The files’ content, and their classification level, have not been confirmed.

Trump and others have used the news to claim, without direct evidence, that the Penn Biden Center is “funded” by China. Trump allies also claimed baselessly that foreign agents had access to the documents.

The university as a whole received $54 million in donations from entities in China from 2014 to 2019, according to an April 2022 New York Post article. But this is a common practice among U.S. institutions. From 2013 to 2020, U.S. universities received nearly $1 billion from Chinese entities, according to Bloomberg News reporting.

A University of Pennsylvania spokesperson told the New York Post in April that the Penn Biden Center has “never solicited or received any gifts from any Chinese or other foreign entity.”

PolitiFact contacted the center for comment but did not hear back.

On Jan. 11, news broke that a second set of classified documents had been discovered in Biden’s Wilmington house, in a garage and a nearby room. The number of documents was not specified.

Richard Sauber, a Biden lawyer, said, “We have cooperated closely with the Justice Department throughout its review, and we will continue that cooperation with the special counsel. We are confident that a thorough review will show that these documents were inadvertently misplaced, and the president and his lawyers acted promptly upon discovery of this mistake.”

Trump’s documents

The FBI’s high-profile August seizure of documents from Trump’s Mar-a-Lago resort in Florida followed an extensive 19-month back-and-forth between Trump and the government over whether he possessed any presidential documents, how many he may have had, and whether Trump had been transparent about the questions that government officials had about the documents.

Former President Donald Trump
Former President Donald Trump [ JULIA NIKHINSON | AP ]

Efforts to retrieve the documents started shortly after Trump left the White House in January 2021 and shipped presidential documents to Mar-a-Lago that, by law, were supposed to have been sent to the National Archives. The Presidential Records Act sets out the broad categories of papers and other items that need to be given to the National Archives after a president leaves office.

In May 2021, National Archives officials alerted Trump’s team to documents it believed were missing from its collections and requested their return. Trump handed the files over in January 2022.

In February 2022, David Ferriero, who was then head of the National Archives, told the House Oversight and Reform Committee that his agency had recovered 15 boxes of presidential records from Mar-a-Lago. Ferriero said the boxes included “items marked as classified national security information.”

Because the boxes combined classified and nonclassified materials, the Justice Department opened an investigation into possible mishandling of classified documents and later issued a subpoena for any files in Trump’s possession that had classification markings.

Justice Department officials traveled to Mar-a-Lago in June, where they received a package that included some classified files.

But that still wasn’t everything. After interviewing additional Trump staffers and reviewing surveillance footage, the FBI searched Mar-a-Lago in August and found files with classification markings in at least 12 boxes in two rooms, along with thousands of pages of additional presidential records that Trump wasn’t supposed to have.

Related: Classified items found at Trump storage unit in Florida, report says

How similar and different are the two situations?

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

Bradley Moss, a Washington, D.C., lawyer who works on national security cases, told PolitiFact that “threshold similarities” exist between the cases.

“Both Mr. Trump and President Biden had documents with classification markings stored in unauthorized locations while they were private citizens,” Moss said. “That is impermissible and a violation of federal law.”

But Moss and other experts said other aspects of the cases are markedly different, at least based on what is publicly known so far.

“The Biden team and the Trump team approached this in completely different ways,” Moss said. “The Biden team did what is supposed to be done, namely immediately notifying the government of the issue after locating the documents and returning them to government control. As far as we know from the media reporting, the Biden team has been cooperative with the inquiry.”

By contrast, Moss said, “the Trump team did none of that. The Trump team time and again delayed, procrastinated, and obfuscated” efforts by the National Archives and the Justice Department to recover the records at Mar-a-Lago. “They even went so far as to submit a sworn declaration to the Justice Department from one of the attorneys, falsely stating there were no more records. There were, of course, more records, as the search warrant execution revealed.”

At least 100 documents were recovered in the Mar-a-Lago search, compared with a reported 10 in Biden’s case. And that doesn’t include the boxes of documents that were initially taken by Trump but handed over by his team before the search.

One aspect that remains unclear is whether the two cases also differ on motive.

As more details about the Biden case are confirmed, “one thing I will be looking for is state of mind,” said Mark Osler, a law professor at the University of St. Thomas. “Were these documents taken knowing they were classified, or by mistake, perhaps because they were mixed in with other things?”

Accidental misplacement of classified documents after government service would not necessarily rise to the level of a crime, experts say. The cases that are prosecuted tend to be knowing, intentional violations. At this point, Biden said the discovery was a surprise.

Meanwhile, there’s at least one more difference between the two cases.

Because he’s now serving as president, “Biden cannot be prosecuted while he is in office,” said James Robenalt, an attorney with the firm Thompson Hine who has studied government legal scandals dating back to Watergate in the 1970s. Trump, as a private citizen, can be prosecuted.