As the drip, drip, drip of President Joe Biden’s classified documents scandal leaks out, legal experts have been quick to point out that Biden’s situation is less serious, legally speaking, than former President Donald Trump’s. It’s true that under the facts as we know them right now, Biden’s possession of classified documents, while careless, doesn’t rise to the threshold required to violate the law.
While Biden’s actions may not be a crime, they still present significant national security concerns.
But while Biden’s actions may not be a crime, they still present significant national security concerns. More importantly, the new discoveries have given House GOP more fodder for yet another congressional oversight investigation, which will shine a bigger spotlight on Biden’s actions than on Trump’s. Biden may not have a legal problem, but he does have a perception problem.
It’s worth reiterating at the outset the legal distinctions between Biden’s and Trump’s possession of classified documents. The difference is one of intent. Even if we assume that both presidents ended up with classified documents at their homes inadvertently, Biden immediately notified and cooperated with the Justice Department after discovering them while Trump stalled, evaded and made misrepresentations in his dealings with law enforcement. Biden even consented to a search of his home by the FBI. By contrast, the FBI was arguably left with no choice but to obtain a search warrant for Mar-a-Lago after learning that classified documents remained on the premises despite Trumps lawyers warranting to the FBI that they had been returned.
These differences matter from a legal perspective. In Trump’s case, his refusal to turn over classified documents despite repeated requests (including a subpoena) by the Justice Department triggers a section of the Espionage Act that makes it a crime to “willfully retain” national defense information after being asked to return it. His apparent concealment of additional documents following the subpoena, which necessitated the search warrant, triggered the obstruction of justice statute. Biden’s actions, on the other hand, could arguably fall under a section of the Espionage Act that criminalizes “gross negligence” in the handling of national defense information — the same provision under which Hillary Clinton was investigated. But even “gross negligence” requires a greater degree of intentionality than Biden has demonstrated, making it unlikely that he could be prosecuted under that statute.
Unfortunately, these nuances are less relevant when we take the law out of the picture. The fact remains, according to reports, that Biden had classified items, including documents marked Top Secret — meaning that their disclosure could gravely damage national security — in several unauthorized locations, including his home and garage. In the most recent search of his home, to which Biden consented, the FBI discovered six additional classified documents, including one that went back to his time as a senator. The presence of these documents, in so many different locations and over such a long period of time, is difficult to justify and presents serious national security concerns, regardless of whether they constitute a crime.
Enter the House GOP investigation. House Oversight Committee Chairman James Comer, R-Ky., has already requested visitor log information for two locations where documents were found, the Penn Biden Center for Global Engagement and Diplomacy and Biden’s personal residence. He may also subpoena Biden’s aides from his days as vice president or other individuals who may have been involved in handling Biden’s effects when he left office. And if this New York Post article is any indication of where the congressional investigation is headed, Comer may try to link Hunter Biden’s access to the classified documents in the president’s home to Hunter’s business deals in China. In short, this isn’t going to end anytime soon.
Although the Justice Department is looking into even more serious national security issues with Trump, that investigation is taking place behind the scenes.
This is where Biden faces a challenge. As we saw from the Jan. 6 committee, public hearings can be a powerful way to shape public perception. Even though legally speaking Biden may not be on the hook for a crime, the hearings offer the potential for the GOP to demonstrate — in public and over a long period of time — that Biden was sloppy in his handling of classified information. It doesn’t help that Biden’s team conducted its due diligence in a piecemeal fashion, allowing new revelations to surface every few days. From the public’s point of view, Biden may end up looking as shady as Trump.
Here is the kicker: Although the Justice Department is looking into even more serious national security issues with Trump, that investigation is taking place behind the scenes. This means that while Biden’s shortfalls with respect to his handling of classified information will continue to be in the public eye, the much more serious nature of Trump’s actions will remain in obscurity unless and until the special counsel decides to charge him with a crime. Ironically, Trump is “protected” by the secrecy of a criminal investigation in a way Biden is not. While the committee’s focus on Biden, but not Trump, certainly smacks of partisanship, it isn’t unreasonable on its face for the committee to investigate the circumstances surrounding the classified documents in Biden’s possession. And this is the problem for Biden. Unlike the other GOP circus investigations like the one into Hunter Biden’s laptop, this one has, at its core, a real issue that Congress would be right to look into. It also has an arguably valid legislative purpose. After all, it seems pretty clear that there needs to be some reforms to how classified documents are accounted for when administrations leave office. In the end, the court of public opinion may end up being a bigger obstacle for Biden than a court of law.
Asha Rangappa
Asha Rangappa is a senior lecturer at Yale University's Jackson Institute for Global Affairs and a former associate dean at Yale Law School. Before Yale, she served as a special agent in the New York Division of the FBI, specializing in counterintelligence investigations. She has been a contributor on numerous television and radio outlets and is now a legal and national security analyst. 
