When two national news outlets reported last month that President Joe Biden isn’t likely to be charged in an investigation into classified documents found at his office and home, former President Donald Trump, who has been indicted for improperly keeping documents at his home in Mar-a-Lago, predictably expressed his unhappiness about that prospect.
It makes sense that Trump, but not Biden, would be charged.
“Wow! Fake news CNN, through a leak from the Department of Injustice, has just reported that no charges will be filed in the (much bigger than mine!!!) Crooked Joe Biden documents case,” Trump posted on his Truth Social platform at 6 a.m. on Nov. 17. “We are living in a very corrupt country!” Minutes later, the GOP presidential front-runner asserted, “Selective prosecution.”
The day before, The Wall Street Journal had reported that sources familiar with special counsel Robert Hur’s investigation into documents discovered at Biden’s Wilmington, Delaware, home and at his office in the Penn Biden Center for Diplomacy and Global Engagement, said Hur’s report would sharply criticize Biden, but not accuse him of criminality. Later that same day, CNN, citing two sources, also reported that Biden was not expected to face charges.
NBC News has not confirmed that reporting, but it makes sense that Trump, but not Biden, would be charged. If the WSJ and CNN sources are right about Biden not being charged, then we’ll likely be hearing a lot more from Trump and his ilk accusing the justice system of unfair, biased treatment. Yet, just about the only commonality between Biden’s and Trump’s document cases is that both involve paper with classified markings. That’s where the similarity ends.
To understand why Biden probably won’t be charged, it may be helpful to remember why Trump was. The former president is accused of unlawfully storing hundreds of classified U.S. government documents in closets, ballrooms and bathrooms at his Mar-a-Lago resort where employees, club members and their guests, some who are foreign nationals, routinely work, vacation and attend weddings, parties and myriad other events.
According to email communications that have now been made public, the National Archives began asking Trump and his team to return all unaccounted-for government records in May 2021. Trump didn’t comply. It wasn’t until eight months later, January 2022, that Trump’s staff returned 15 boxes of documents. The National Archives observed that 14 of the boxes contained classified documents, and it called in the Justice Department.
In March 2022, the FBI opened an investigation, and in May, a grand jury subpoena was issued to Trump demanding the return of all classified documents in his possession. Again, Trump didn’t comply. The special counsel’s office alleges Trump conspired to obstruct the investigation by providing only a portion of the demanded documents while he claimed he was fully cooperating.
According to email communications that have now been made public, the National Archives began asking Trump and his team to return all unaccounted for government records in May 2021. Trump didn’t comply.
Biden hasn’t been accused of either willful retention or obstruction. In his case, the National Archives was unaware of any missing documents and never made any request to return them. We’re told that Biden’s attorneys were packing files at the Penn Biden Center and noted a “small number” of documents with classified markings. The White House counsel’s office notified the National Archives that day, and the National Archives retrieved the items the next. Unlike Trump, who was aware for at least 16 months that the U.S. government wanted its documents back, Biden told reporters that he was “surprised” to learn of the classified documents and didn’t know what was in them.
Importantly, Trump is accused of suggesting that his lawyer “hide or destroy” the classified documents, and instructing Walt Nauta, his personal assistant who is also indicted, to relocate and conceal boxes of the government documents. Some of that hide-and-seek movement was captured on security video obtained by the FBI in July 2022. When the FBI obtained a warrant to search Mar-a-Lago in August 2022, agents discovered 11 more document sets, including some marked SCI, meaning highly classified “sensitive compartmented information.”
Trump was originally charged by special counsel Jack Smith in early June with 37 federal felony counts associated with his willful retention of national defense information (NDI), conspiracy to obstruct justice, corruptly concealing a document or record, withholding a document or record, concealing a document in a federal investigation and making false statements. In late July, Smith added new charges to reflect further obstruction based on the government’s claim that Trump ordered a staff member to erase security camera video. Smith also filed another charge of willful retention of NDI, related to reports that Trump openly displayed and discussed a classified U.S. military attack plan at his Bedminster, New Jersey, golf property. The special counsel also named a new defendant in the case who is accused of aiding in Trump’s obstruction conspiracy.
The two key themes repeated throughout Trump’s indictments are “willful retention of NDI,” 18 USC 793(e), and “conspiracy to obstruct,” 18 USC 1512. At the core of a willful retention charge is a finding that the person possessing the NDI “retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.” The special counsel argues in his indictment that the National Archives is the entitled recipient and that Trump did not comply with repeated demands, even via criminal subpoena, to deliver the NDI back to it.
As for the conspiracy-to-obstruct charges, Trump’s indictment cites multiple instances when he took specific actions to attempt to hide, conceal or tamper with evidence. Again, Trump’s reported conduct starkly contrasts with Biden’s reported conduct.
Don’t take just my word on the distinctions between the Trump and Biden cases. Look at their own words and actions.
But don’t take just my word on the distinctions between the Trump and Biden cases. Look at their own words and actions. As to whether Trump willfully retained classified documents and took steps to obstruct their return, consider Trump’s retort in a speech, “I can do whatever I want, but I did nothing wrong.”
Then there’s Trump’s statement at a rally while talking about the FBI’s seizure of the documents via search warrant. He said, “They should give me back everything that they’ve taken from me because it’s mine, mine.” If you’re wondering whether Trump understood that the documents he had were still classified, remember that Trump’s voice was recorded telling Bedminster guests that the U.S. attack plan document he was allegedly showing them was “secret. This is secret information. Look, look at this.” According to that audio recording, he said, “As president, I could have declassified, but now I can’t.”
Unlike Trump, Biden voluntarily invited the FBI to search multiple locations within his control, including his office space at the Penn Biden Center, his Delaware residences, where six classified documents were reportedly found, and his records repository at the University of Delaware. No search warrants were required. The president also voluntarily sat down for an interview with investigators, something Trump hasn’t yet done to our knowledge, though he claimed he would testify if asked.
While Trump and his supporters will loudly protest if Biden is ultimately not charged, one thing we’re not likely to hear from them is that their fellow Republican, former Vice President Mike Pence, got off too lightly in his own documents investigation. Pence, like Biden, reported discovering classified materials in his home, and, like Biden, invited the FBI in to search.
Trump was quick to declare Pence “an innocent man.” The Pence case was closed without charges in June. It’s funny how Trump’s distinction between “innocent man” Pence, and “Crooked Joe Biden” seems to hinge not on the facts but on party affiliation.
Frank Figliuzzi
Frank Figliuzzi is an MSNBC columnist and a national security contributor for NBC News and MSNBC. He was the assistant director for counterintelligence at the FBI, where he served 25 years as a special agent and directed all espionage investigations across the government. He is the author of “The FBI Way: Inside the Bureau’s Code of Excellence.”
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