There’s a line in an old song that goes “Lawyers dwell on small details.” It’s true. The law is all about details. From one perspective, two cases may appear similar, but depending on the details, they can be very different.
From one perspective, two cases may appear similar, but depending on the details, they can be very different.
Classified documents were found at the offices and homes of former President Donald Trump and President Joe Biden from the time he was vice president. In November Attorney General Merrick Garland appointed Jack Smith as special counsel to lead the investigation into the presence of classified documents at Trump’s Mar-a-Lago residence. Thursday, after reports that classified documents from his vice presidency had been found at Biden’s home and office, Garland appointed Robert Hur as special counsel to investigate that matter.
So far, the stories look similar. Neither Biden nor Trump should have been in possession of classified documents after they left office. These are the people’s documents, not theirs.
But because the law concerns itself with details, not headlines, the similarities mostly stop there.
As a former president, Trump might be indicted, but perhaps the most important reason Biden is unlikely to face indictment or criminal prosecution is he’s currently president. As we know all too well from the four years of the Trump administration, the Justice Department has a policy against indicting sitting presidents. An opinion issued by the Office of Legal Counsel, a division of the Justice Department, provides that charging the president with a crime would “unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
Trump was certainly the happy beneficiary of that policy. Special counsel Robert Mueller, investigating a potential conspiracy between the Trump campaign and the Russian government, noted that the OLC opinion factored into his decision not to charge Trump. Though Mueller wouldn’t state whether Trump had committed a crime, we should take his decision not to recommend charges against Trump more as proof that Mueller adhered to the OLC opinion than as proof that he believed Trump was innocent.
In a televised hearing in May 2019, Mueller, referring to impeachment, said that “the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing,” and some Democrats pushed for that to happen. Sen. Cory Booker, D-N.J., for example, tweeted that “Robert Mueller’s statement makes it clear: Congress has a legal and moral obligation to begin impeachment proceedings immediately.” Of course, impeachment is a political process, and the punishment is losing a job, not losing one’s freedom and going to prison.
The GOP now controls the House of Representatives, and we know members of that party have been raring to go to investigate and possibly impeach Biden. But impeaching Biden for possessing classified documents would be improper for two reasons. First, there is a good argument to be made that people can only be impeached for misconduct committed while in office. Biden’s retention of classified documents occurred after he left the vice presidency and before he assumed the presidency. Second, impeachment is only available when the subject of the impeachment has engaged in “treason, bribery, or other high crimes and misdemeanors.”
After a Trump attorney’s false assertion to the Justice Department that all the requested documents at Trump’s Mar-a-Lago residence had been returned, the Justice Department was ultimately forced to obtain and execute a search warrant.
For reasons discussed below, Biden’s conduct is unlikely to be characterized as criminal, even if he weren’t the sitting president. There is also plenty of reason to believe that Trump will or at least ought to be. Consider what each did after being alerted that he might be in possession of classified documents.
Trump reportedly ignored multiple requests from the National Archives for those documents, and after a Trump attorney’s false assertion to the Justice Department that all the requested documents at Trump’s Mar-a-Lago residence had been returned, the Justice Department was ultimately forced to obtain and execute a search warrant. Prosecutors have also argued that Trump’s team tried to hide the documents found at Mar-a-Lago before and after the subpoena was issued.
Reportedly, in Biden’s case, the White House counsel alerted the National Archives as soon as classified documents were found at Biden’s former office in November. The National Archives didn’t ask; Biden’s team offered.
Then that team searched for any additional documents that belonged to the government. It found additional files at Biden’s residence in December and more last week, before the White House announced Saturday that additional documents had been found Thursday. The Biden story is one of cooperation, not obstruction. Also, the number of documents found is vastly different. While there were hundreds of classified documents found at Mar-a-Lago, CBS News’ initial report of classified documents found at Biden’s former office cited sources who said there were about 10 such documents. It’s unclear how many classified documents were later found. Let’s be clear: A single out-of-place classified document is one too many. But the difference in scale does matter. It matters because it can help show whether the taking of the documents was inadvertent, a consequence of sloppy record keeping or willful misconduct. And what did each man do with the documents? While Trump, according to a letter from the National Archives, appears to have mutilated some of the documents found at Mar-a-Lago, there are no reports that any documents found in Biden’s possession had been harmed, destroyed or altered. Let’s be clear: A single out-of-place classified document is one too many. But the difference in scale does matter. These differences could have significant legal consequences. To rise to the level of criminal culpability, prosecutors will likely need to show knowledge or willful intent to take and retain government property. The federal criminal statutes that Trump could be charged with violating require some level of scienter, which in plain language means knowledge about the nature of one’s acts. Federal law, for example, makes it illegal to knowingly or wilfully take or keep classified documents. Given the evidence thus far, and Biden’s apparent surprise that classified documents were found at his former office and current home, that required knowledge is likely lacking. Trump, by contrast, alternately claimed that the documents were planted, or that he declassified the documents and that they were covered by executive privilege. None of these claims, it should be noted, appears to be based on reality and, hence, would not rebut a scienter requirement. There’s a perspective technique known as anamorphosis, which can leave the viewer with a distorted image of a subject when seen from a certain angle. But by moving away or changing one’s perspective, the distortion disappears, and the image appears clear. These two cases require us to view them from the proper perspective to see the reality. According to what we know now, Trump faces the very real threat of criminal prosecution. Biden does not, and although part of that is because of the Justice Department’s policy against indicting sitting presidents, it’s unlikely he’d be charged even if he was not in the Oval Office.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
