We’re all waiting to see if Justice Department special counsel Jack Smith brings charges against Donald Trump related to classified documents at Mar-a-Lago. But whatever happens there, don’t be fooled into thinking that President Joe Biden faces that same legal danger for records found at his think tank in November.
As CBS News first reported on Monday, Biden’s personal attorneys found “roughly 10” documents from his vice presidency while cleaning out an office at the Penn Biden Center for Diplomacy and Global Engagement in Washington. The White House Counsel’s Office told the National Archives about the documents, which were discovered in a locked closet, later that day, according to the White House.
Richard Sauber, special counsel to the president, said in a statement:
The documents were not the subject of any previous request or inquiry by the Archives. 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.
Republicans naturally seized on the news with trademark whataboutism. But as my colleague Steve Benen pointed out, it’s “clearly insane” to liken the Biden story to the Trump mess.
Indeed, if the Biden camp’s explanation is true, then it’s immediately obvious that there’s a difference between the Biden and Trump situations, just from a common sense standpoint, because a recurring theme in the Trump investigation is his failure to turn over documents to the government after being asked for them, while Biden didn’t even have to be asked.
As it stands now, the Biden story is legally meaningless.
As it turns out, there’s legal significance to that common sense point. Take one of the potential crimes with which Trump may be charged: retention of national defense information under Title 18 of the United States Code, section 793(e). Specifically, that law can be used against a person who “willfully retains” such material “and fails to deliver it to the officer or employee of the United States entitled to receive it.” Based on what we know about Biden and Trump, that’s not what appears to have happened with Biden — but it is what apparently happened with Trump.
In fact, Biden appears to have done the opposite of willfully retaining and failing to deliver documents. Relatedly, then, he’s not vulnerable to obstruction charges like Trump is. And even if Biden appeared to have committed a crime — and, to be clear, it doesn’t appear that way — we were reminded during the Trump-era investigation by special counsel Robert Mueller that the DOJ has a policy of not charging sitting presidents. On the subject of high-profile document sagas and DOJ policy, it’s worth referring to another one that became a GOP talking point: the Hillary Clinton email “scandal” that helped propel Trump into the White House in the first place. Recall that the FBI director at the time, James Comey, explained the government’s refusal to charge Clinton based on past DOJ practice. Here’s what Comey said in July 2016: In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.
Applying those factors to Biden and Trump, we don’t see those things for Biden, either, but we do see them for Trump. So as it stands now, the Biden story is legally meaningless. (NBC News reported that Attorney General Merrick Garland assigned John Lausch, a U.S. attorney in Chicago appointed by Trump, to review the matter.) But to the extent the story is meaningful, it serves to underscore how a president or former president should handle their legal obligations without having to be reminded — and litigated against — by their own government. If there’s any additional pressure on the DOJ, it’s to recognize the clear differences between Biden and Trump — and to act accordingly.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law. 
