To be sure, this is not simply a case of both sides do it and therefore the government response and legal outcomes should be identical. There are significant differences between the two cases that warrant great attention. But obfuscated by the political battles and competing narratives from the partisan commentariat are a series of important issues about the U.S. system of rampant overclassification, the treatment of whistleblowers, and the uneven application of laws surrounding the mishandling of classified documents depending on the stature of the violator.
“I don’t want to draw any equivalence between Biden’s actions and Trump’s, and I don’t want to provide excuses for either president’s conduct, but both of these episodes are in part the result of a totally broken classification system,” said Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University. “Far too much information is classified, and many of the things that are classified are classified for the wrong reasons — not because their disclosure would harm national security, but because their disclosure would be embarrassing or inconvenient or simply because it’s easier for bureaucrats to classify them than not to.”
Trump was famously impeached twice during his presidency, though he was acquitted by the Senate in both cases. Democrats are hoping the former president encounters a different fate at the end of the current investigations into his conduct in the waning days of his administration and his retention of classified documents as a private citizen. As sitting president, Biden will have to contend not just with the special counsel probe, but also congressional investigations run by Republicans who have made no secret of their desire to bring him down. Given the stakes not just for Biden individually but also for his presidency, it is important to review the chronology of events as we currently understand them.
Mishandled and Miscommunicated
On November 2, 2022, a week before the high-stakes midterm elections, lawyers for President Biden discovered some forbidden fruit inside a seldom-used office in a think tank bearing the name of the 46th president. The lawyers were there to close down the office at the Penn Biden Center for Diplomacy and Global Engagement, which Biden inaugurated in 2018 following his eight years as vice president. According to Biden’s legal team, as they packed up Biden’s papers and other items, the lawyers found a batch of what appeared to be classified materials inside a locked closet in Biden’s office suite.
Biden’s team, according to their own account, swiftly reported the matter to the National Archives and offered full cooperation in determining how the documents arrived at the unsecured facility. The president, they claimed, was unaware of the documents and had no knowledge of how they came to be there. “I was briefed about this discovery and surprised to learn that there were any government records that were taken there to that office, but I don’t know what’s in the documents either,” Biden later said. On November 9, a day after the congressional elections, the Justice Department and FBI began an initial assessment of the matter, and, on November 14, Attorney General Merrick Garland assigned a U.S. attorney to initiate a preliminary investigation.
Biden’s team kept this all a secret, and we may never know for how long they intended to do that.
Perhaps in a different era, this matter would not have given off the vibe of a five-alarm fire. But the timing of this discovery, both in the immediate political sense and the broader historical sense, could not have been worse for Biden. But then, it did get worse.
The president’s team did not inform the public about the classified documents once they were discovered. They did not inform the public that the FBI and Justice Department had launched an investigation into the sitting president on a potentially serious matter involving classified materials that had been taken to an unsecured facility and remained there for years. The president and his advisers knew very well the political tripwire they had crossed and the implications it could have had not just on the midterm elections, but also on the case against his predecessor for the very same issue. So Biden’s team kept this all a secret, and we may never know for how long they intended to do that. “The White House was hoping for a speedy inquiry that would find no intentional mishandling of the documents, planning to disclose the matter only after Justice issued its all-clear,” according to the Washington Post.
There are vast differences between the Biden and Trump cases, both in the volume of materials and the manner in which the two sides have handled their situations and approached the investigations. Biden’s team claims he was not aware the handful of documents were in his custody and immediately reported them to the National Archives, while Trump has said he had the right to take the materials — numbering more than 300 classified documents — to Mar-a-Lago. Trump’s staff, at the end of his presidency, had ferried hundreds of classified materials from Washington, D.C., to Trump’s Palm Beach resort. It is not uncommon for presidents to violate the Presidential Records Act, but it is unusual to have a president tenaciously resist efforts by the National Archives to take custody of improperly handled materials, especially at the scale involved in the Trump case.
From the beginning, Trump’s team consistently stymied the efforts of the government to take custody of the documents. In early 2022, Trump grudgingly handed over some materials to the National Archives, but he and his aides fiercely resisted returning additional documents, including through conduct that may constitute obstruction of justice. Among the documents initially recovered from Trump were reportedly materials from the CIA, FBI, National Security Agency, and other agencies. In August, the FBI executed a search warrant and seized dozens of boxes of additional materials from Trump’s Florida estate. In an affidavit in support of the warrant, the FBI asserted that it believed it would find “evidence, contraband, fruits of crime, or other items illegally possessed in violation” of several laws, including rules governing the gathering or transmission of defense information under the Espionage Act. Allegedly included in the cache discovered during the raid at Mar-a-Lago were documents labeled “Top Secret/Sensitive Compartmented Information.”
These factors, as well as the specific nature and sensitivity of the documents in question, could prove significant in determining the divergent ways these two cases might play out legally. In a public relations sense, however, particularly at this extremely bad faith moment in history, such distinctions matter little, especially to Trump and the Republicans.
In the months leading up to the discovery of classified materials in Biden’s possession, the Democrats hammered away at Trump over the classified documents. The former president and his supporters have claimed he is being targeted in yet another political witch hunt and that as president, he had the power to declassify the documents he took. While it is technically true that both the president and vice president have such authority, there are procedures for declassifying documents, and it appears likely that Trump did not abide by them. Instead, he claimed that as president, he had issued a standing order that anything he took to his private residence was by default declassified and he therefore had the right to take them to Florida when he left office. “If you’re the president of the United States, you can declassify just by saying ‘it’s declassified’ — even by thinking about it,” Trump told Fox News after the FBI action at Mar-a-Lago.
In September, in an interview with 60 Minutes, Biden lambasted Trump for taking the documents. “How that could possibly happen? How anyone could be that irresponsible?” he said, recalling his reaction when he saw the FBI photos of the documents laid out on the floor. “I thought, ‘What data was in there that may compromise sources and methods?’” Just a few months later, those very questions could be asked of Biden.
As the White House kept the lid on its own brewing crisis, Garland announced on November 18 that he had appointed former war crimes prosecutor Jack Smith as special counsel to investigate Trump’s retention of classified materials, as well as his efforts to overturn the results of the 2020 presidential election and his role in the January 6 siege at the U.S. Capitol. Following Smith’s appointment, liberal media outlets and Democratic politicians spent endless hours discussing what they hoped would be the criminal prosecution of Trump, ideally ending with jail time. Unbeknownst to them, Biden and his administration were sitting on a ticking bomb of their own.
On December 20, Biden’s lawyers discovered more classified materials, this time at the Biden home in Delaware. The documents were not even in a locked closet in an office. They were in Biden’s garage next to his prized Corvette.
On January 9, CBS News broke the story. Well, part of the story. CBS reported that the Justice Department had launched an initial probe into the documents discovered at the Penn Biden Center. The White House counsel’s office was forced to confirm the report. “Since that discovery, the president’s personal attorneys have cooperated with the archives and the Department of Justice in a process to ensure that any Obama-Biden Administration records are appropriately in the possession of the archives,” said Richard Sauber, special counsel to the president. He said nothing about the documents discovered in Biden’s garage. Biden, along with Garland, was in Mexico City for a summit of North American leaders when the story broke.
The documents were not even in a locked closet in an office. They were in Biden’s garage next to his prized Corvette.
On January 10, Biden personally spoke about the documents, but like his lawyer, he pretended that the only issue was documents found at the Penn Biden Center. “People know I take classified documents, classified information, seriously,” Biden said in Mexico. “When my lawyers were clearing out my office at the University of Pennsylvania, they set up an office for me — when I — the four years after being vice president, I was a professor at Penn. They found some documents in a box, in a locked cabinet, at least a closet. And as soon as they did, they realized there were several classified documents in that box.”
In Mexico, Biden pled ignorance about the contents of the classified materials. “I don’t know what’s in the documents, I’ve — my lawyers have not suggested I ask what documents they were,” he said. “I’ve turned over the boxes, they’ve turned over the boxes to the archives, and we’re cooperating fully. We’re cooperating fully with the review, which I hope will be finished soon.”
The next day, on January 11, NBC News reported that more documents had been recovered from a second unnamed location. On January 12, Garland named Robert Hur, a former U.S. attorney in Maryland, who was appointed by Trump, as special prosecutor to investigate the Biden case. Only then did Biden’s legal team finally confirm that documents were recovered from his personal garage in late December. When a Fox News reporter asked Biden why he would keep classified documents in a garage next to his Corvette, the president shot back, “My Corvette’s in a locked garage, OK? So it’s not like they’re sitting out on the street.”
Trump and other Republicans have seized on the garage documents, in particular, in their attacks on Biden, raising questions about who had access to them and trying to link them to various scandals involving Biden’s son Hunter. “The White House just announced that there are no LOGS or information of any kind on visitors to the Wilmington house and flimsy, unlocked, and unsecured, but now very famous, garage,” Trump wrote on his Truth Social account. “This is one of seemingly many places where HIGHLY CLASSIFIED documents are stored (in a big pile on the damp floor). Mar-a-Lago is a highly secured facility, with Security Cameras all over the place, and watched over by staff & our great Secret Service. I have INFO on everyone.” Trump does not seem to be doing himself any favors by posting about the case on social media, and some analysts believe he may be incriminating himself in some of his rants.
While the FBI has been aggressive in its pursuit of documents from Trump, culminating in the search warrant-empowered raid at his resort, the agency has taken a different approach with Biden. The president’s legal team and the Justice Department agreed that the FBI would not oversee the search for more classified materials potentially held by the president at his homes and would place the responsibility of self-reporting on Biden’s lawyers, according to the Wall Street Journal. The arrangement was, in part, a result of the initial cooperation offered by Biden’s team, the paper stated, but also offers investigators flexibility as the probe deepens. “That way the Justice Department would preserve the ability to take a tougher line, including executing a future search warrant, if negotiations ever turned hostile, current and former law enforcement officials said,” reported the Wall Street Journal. The right-wing media ecosystem has cited this report to bolster the argument that Biden is being treated differently than Trump.
At present, the White House claims the total number of documents found at Biden-affiliated locations numbers roughly 20. There is very little publicly known about the contents of the documents recovered from various Biden sites. CNN has reported that among the classified materials housed at the Penn Biden Center were documents “including U.S. intelligence memos and briefing materials that covered topics including Ukraine, Iran, and the United Kingdom.” Some were reportedly marked “Top Secret.” Secretary of State Antony Blinken, who ran the Penn Biden Center, has said he had no knowledge of the documents and did not know they were there.
The Biden administration has offered a lackluster and unsatisfying defense of its delays in disclosing the discoveries, the deliberate initial omission of the existence of the garage documents, and the misleading statements offered by the president and his aides. Biden’s legal team has “attempted to balance the importance of public transparency where appropriate with the established norms and limitations necessary to protect the investigation’s integrity,” said Robert Bauer, the president’s personal attorney. “These considerations require avoiding the public release of detail relevant to the investigation while it is ongoing.”
White House Press Secretary Karine Jean-Pierre has repeatedly struggled to provide direct answers to legitimate questions from the press about a range of issues pertaining to the documents and the timeline offered by Biden and his team. She told journalists on January 12 — the day Garland announced a special prosecutor — that the search for the documents at Biden’s properties was finished. “You should assume that it’s been completed, yes,” she said. “But that search was completed last night. And now this is in the hands of the Justice Department.” But that very night, five more classified documents were discovered at Biden’s Delaware residence in a room adjacent to his garage. “Because I have a security clearance, I went to Wilmington Thursday evening to facilitate providing the document the president’s personal counsel found on Wednesday to the Justice Department,” said Sauber, Biden’s special counsel. “While I was transferring it to the DOJ officials who accompanied me, five additional pages with classification markings were discovered among the material with it, for a total of six pages. The DOJ officials with me immediately took possession of them.”
Jean-Pierre did not mention the new documents in her briefing the next day, despite repeated questions from reporters. On Saturday, January 14, the administration confirmed the existence of the newly discovered documents. The following Monday, Jean-Pierre offered a muddled defense of her earlier comments and refused to answer when she had learned about the discovery of the new documents. “I have been forthcoming from this podium,” she said. “What I said yes to was what the statement at the time that we all had. Right? You all had the statement. And I was repeating what the — what the counsel was sharing at that time.”
At a minimum, Biden and his administration have committed repeated sins of omission in how they’ve explained this situation to the public. While it is plausible that Biden is being honest when he says he had no knowledge of the documents being at his think tank office, the administration knowingly left out crucial details, including the garage documents, and only came clean when journalists exposed new information or were on the verge of doing so. “I think you’re going to find there’s nothing there. I have no regrets,” Biden said of the decision not to disclose the discovery of the documents prior to the midterm elections. “I’m following what the lawyers have told me they want me to do. It’s exactly what we’re doing. There’s no ‘there’ there.”
Trump’s defense of his actions, on the other hand, seems to boil down to: 1. I did it; 2. I had a right to do it; and 3. Anything I did to stop you from violating points one and two was justified.
The Problem With Overclassification
The classified documents scandals involving both Trump and Biden will unfold on various planes, including political and legal. House Republicans, reveling in their new majority, have already vowed to make Biden’s case a major focus of what is expected to be a sprawling, chaotic symphony of investigations backed by the power of subpoenas. The Democrats control the Justice Department, and special prosecutor Jack Smith — who is investigating Trump’s classified documents case — is known as a tenacious legal combatant who used to run the Justice Department’s public corruption division.
Ben Wizner, the director of the Speech, Privacy, and Technology Project at the American Civil Liberties Union, said that factors such as the Biden team’s cooperation and self-reporting of the documents and Trump’s hindering of the investigations will be relevant as the respective cases proceed. But Wizner cautioned against placing too much emphasis on the simple fact that the materials were classified. “The entire classification regime is a joke,” he said. “My hope is that liberals do not adopt the line that the classified documents in Biden’s garage, even though we don’t know what they are, are harmless, and the classified documents found at Mar-a-Lago, even though we don’t know what they are, are a grave threat to the nation. The overwhelming likelihood is that neither breach is likely to harm much of anything.” He added: “Remember that Trump was president and if he wanted to harm the U.S. and give information to adversaries, he could have done that every day for four years.”
Both Biden and Trump may have technically violated the law or, at a minimum, the regulations governing the handling of classified information and presidential records. Trump has been accused, though not legally to date, of attempting to destroy records, and he was infamous for ripping up papers as president, a factor which may prove significant in his case. Based on information revealed about the investigation into Trump, it seems possible he could also be charged with obstruction or even conspiracy. There has been no credible suggestion Biden has engaged in any such conduct. Hovering over all of this, of course, will be the political and historical implications of a criminal indictment against a former president, which should not matter but almost certainly will be part of the deliberations once all the facts are known. If one of these powerful men retained the documents for malicious purposes, including to aid a foreign power, personally profit, or engage in blackmail, it would be ludicrous to argue such actions should be tolerated. The same is true if they illicitly took documents that could truly harm the security of the nation or jeopardize sensitive sources or methods. But if the documents are not actually sensitive and their public disclosure would cause no harm, then the question must be asked: Should they remain classified in the first place?
Former House Speaker Nancy Pelosi was recently asked by CNN’s Chris Wallace about the seriousness of Biden holding classified documents for six years after leaving office. “We’ll see what they are,” Pelosi said. “I don’t think that having a briefing on a meeting with somebody—you know, we used to tease up in the Intelligence Committee and just say, ‘Be careful because they’re going to stamp “classified” on the Washington Post.’”
President Obama alluded to this issue during the scandal involving Secretary of State Hillary Clinton’s use of nongovernment email and private servers to house sensitive government materials. “What I also know, because I handle a lot of classified information, is that there are — there’s classified, and then there’s classified,” Obama told Fox News in April 2016. “There’s stuff that is really top-secret, top-secret, and there’s stuff that is being presented to the president or the secretary of state, that you might not want on the transom, or going out over the wire, but is basically stuff that you could get in open-source.”
Washington, D.C., has been drunk on excessive secrecy for decades, so taking a nuanced approach to this problem is virtually impossible. Jaffer cited an observation made by Justice Potter Stewart in the Pentagon Papers case in 1971: “When everything is classified, then nothing is classified.” Jaffer added, “Given the number of classified secrets, and the number of people who have access to those secrets, it’s just practically impossible for the national security bureaucracy to keep track of them.”
“The way that breaches of classification works is too often: Strict liability for thee, impunity for me.”
In the case of whistleblowers charged under the Espionage Act, the accused are not even permitted to explain their motive for leaking or publishing classified materials that expose government abuses or crimes. These cases are relegated to a technical yes-or-no question about mishandling classified intelligence. And the criminal sentences have been extreme. In 2018, Reality Winner, who tried to blow the whistle about Russian attempts to penetrate software used in some U.S. voting systems, was sentenced to more than five years in prison after pleading guilty to one felony count of unauthorized transmission of national defense information. Drone whistleblower Daniel Hale was given a 45-month sentence in 2021 after pleading guilty to the same charge as Winner. Both were prosecuted under the Espionage Act.
There have also been recent cases where government employees have been prosecuted for taking classified documents for more mundane purposes. In early 2020, Asia Janay Lavarello, a civilian defense department employee on temporary assignment at the U.S. embassy in the Philippines, was working on a classified thesis in a secure facility in the embassy when Covid-19 restrictions limited her access. In March, she took home three other classified theses, which she said she wanted to use as models for her own project, as well as notes she made during classified meetings in the embassy. In a plea agreement, Lavarello also admitted to emailing notes to her personal email and to making false statements to FBI agents. She went to prison for three months. Lavarello’s lawyer said she regretted her actions and did not intend to harm the U.S. “Government employees authorized to access classified information should face imprisonment if they misuse that authority in violation of criminal law as Ms. Lavarello did in this case,” said U.S. Attorney Clare E. Connors. “Such breaches of national security are serious violations of criminal law, and we will pursue them.”
Lavarello’s case stands in stark contrast to those of Bill Clinton’s former national security adviser Sandy Berger and former CIA Director David Petraeus. Berger stole documents from the National Archives in 2003 by stuffing them inside his clothing and then destroyed some classified materials. He claimed he wanted to review the documents to prepare for his testimony before the 9/11 Commission. Gen. David Petraeus was forced to resign as CIA director in 2012 after it was revealed he had improperly handled classified materials, including taking some to his home and sharing them with his biographer with whom he was having an affair. Berger was fined $50,000 by a federal judge and lost his security clearance, and Petraeus got two years probation and a $100,000 fine. “The way that breaches of classification works is too often: Strict liability for thee, impunity for me,” said the ACLU’s Wizner. “‘Thee’ being anybody who works lower down in the system, and ‘me’ being anyone who has any power.”
In a recent paper for the Knight First Amendment Institute, Jaffer argued that the sprawling classification infrastructure within the U.S. government has operated counter to democratic ideals. “In the years since 9/11, the United States has paid a staggering price for excessive secrecy. Time and again, national security policies crafted behind closed doors and shielded from public scrutiny have proved to be deeply flawed, with far-reaching consequences for life, liberty, and security,” he wrote. “The executive overclassifies for many different reasons — among them, that officials are rarely sanctioned for overclassifying information; that classifying information can afford the classifier bureaucratic advantage; and that classifying information can shield controversial decisions from scrutiny both inside and outside the government.”
Wizner, who has served as the principal legal adviser to NSA whistleblower Edward Snowden since 2013, said that this moment offers an opportunity to challenge the system of overclassification and unnecessary secrecy that has become a centerpiece of U.S. governance. “The problem with almost everything being classified is that it gives the government almost unlimited power and discretion to go after anyone who is a powerless violator and to give a free pass to the powerful,” he asserted. “Snowden’s revelations led to meaningful reforms in Congress, the courts, and the executive branch. Even former Attorney General Eric Holder has acknowledged that Snowden performed a public service.”
Both Biden and Trump have advocated harsh criminal penalties for leakers and whistleblowers. In Biden’s case, he spent decades as a U.S. senator trying to strengthen laws governing improper disclosures of classified information. As vice president under Obama, he was part of an administration that prosecuted more whistleblowers under the Espionage Act than all administrations in history combined. As president, he has continued this trend, including through prosecuting Daniel Hale, refusing to pardon Reality Winner, and continuing the Trump-era effort to extradite WikiLeaks founder Julian Assange. As president, Trump waged an open war against journalists and their sources, and his Justice Department went so far as to dig up leak cases Obama had declined to pursue and then threw the book at journalistic sources. Under Obama, Trump, and Biden, harsh sentences were imposed on whistleblowers.
None of this appears to be relevant to much of the media coverage or political pontification these days, but it should be. “If history is any guide here, neither of these presidents will be seriously sanctioned for their mishandling of government secrets,” says Jaffer, a veteran civil liberties litigator who waged battles over excessive secrecy throughout the George W. Bush and Obama presidencies. “As a general rule, whistleblowers who disclose secrets in order to inform the public of government wrongdoing are prosecuted aggressively and sanctioned harshly. But senior officials who disclose secrets recklessly, or in order to manipulate public opinion about government policy, tend to be treated with kid gloves.”