The revelation that potentially classified materials were discovered at think tank offices formerly used by President Joe Biden has prompted questions on how the circumstance compares to the seizure last year of hundreds of documents marked as classified from Mar-a-Lago, the Florida residence of former President Donald Trump.
A side-by-side look at the similarities and differences between the two situations:
How many classified documents are we talking about?
Biden: “A small number of documents with classified markings” were discovered on Nov. 2, 2022, in a locked closet at the Penn Biden Center for Diplomacy and Global Engagement, a think tank in Washington, as Biden’s personal attorneys were clearing out the offices, according to Richard Sauber, special counsel to the president.
Biden kept an office at the Penn Center after he left the vice presidency in 2017 until shortly before he launched his 2020 presidential campaign. It was affiliated with the University of Pennsylvania and continued to operate independently of the Biden administration.
Trump: Roughly 300 documents with classification markings — including some at the top-secret level — have been recovered from Trump since he left office in January 2021.
In January 2022, the National Archives and Records Administration retrieved 15 boxes of documents, telling Justice Department officials they contained “a lot” of classified material. In August, FBI agents took about 33 boxes and containers of 11,000 documents from Mar-a-Lago, including roughly 100 with classification markings found in a storage room and an office.
How quickly were the classified documents turned over?
Biden: His personal attorneys immediately alerted the White House counsel’s office, who notified NARA, which took custody of the documents the next day, Sauber said.
“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,” Sauber said.
Trump: A Trump representative told NARA in December 2021 that presidential records had been found at Mar-a-Lago, nearly a year after Trump left office. Fifteen boxes of records containing some classified materials were transferred from Mar-Lago to NARA in January.
A few months later, investigators from the Justice Department and FBI visited Mar-a-Lago to get more information about classified materials taken to Florida. Federal officials also served a subpoena for some documents believed to be at the estate.
In August 2022, FBI agents conducting a search retrieved 33 boxes from Mar-a-Lago. The search came after lawyers for Trump provided a sworn certification that all government records had been returned.
Could either president face charges related to the discovery of the documents?
Biden: Despite the discovery of classified materials in a Biden office, there is no indication Biden himself was aware of the existence of the records before they were turned over.
The administration has also said that the records were turned over the same day they were discovered, without any intent to conceal. That’s important because the Justice Department historically looks for willfulness, or an intent to mishandle government secrets, in deciding whether to bring criminal charges.
But even if the Justice Department were to find the case prosecutable on the evidence, the Justice Department’s Office of Legal Counsel has concluded that a president is immune from prosecution during his time in office. Former special counsel Robert Mueller cited that guidance in deciding not to reach a conclusion on whether Trump should face charges as part of his investigation into coordination between the 2016 Trump campaign and Russia.
Attorney General Merrick Garland asked U.S. Attorney for the Northern District of Illinois John Lausch — one of the few U.S. attorneys to be held over from Trump’s administration — to review the matter after the Archives referred the issue to the department, according to a person familiar with the matter but not authorized to discuss it publicly.
Trump: The former president possibly faces exposure for obstruction over the protracted battle to retrieve the documents themselves. And, since he’s no longer in office, he wouldn’t be afforded protections from possible prosecution that would apply to a sitting president.
In November, Garland appointed Jack Smith, a veteran war crimes prosecutor with a background in public corruption inquiries, to lead investigations into Trump’s retention of classified documents, as well as key aspects of a separate probe involving the January 6, 2021, insurrection and efforts to undo the 2020 election.
What did the presidents have to say about the discovery of the documents?
Biden: Answering questions from journalists at the North American Leaders Summit in Mexico on Tuesday, Biden said he was “surprised to learn” that the documents had been found at his think tank. He said he didn’t know what was in the material but takes classified documents “very seriously.”
He said his team acted appropriately by quickly turning the documents over.
“They did what they should have done,” Biden said. “They immediately called the Archives.”
In September, speaking of the situation with Trump, Biden told CBS’ “60 Minutes” that the discovery of top-secret documents at Mar-a-Lago raised concerns that sensitive data was compromised and called it “irresponsible.”
Trump: Trump has claimed at times that he declassified the documents that he took with him — though he has provided no evidence of that. He said in a Fox News interview in September that a president can declassify material “even by thinking about it.”
The former president has called the Mar-a-Lago search an “unannounced raid” that was “not necessary or appropriate” and represented “dark times for our Nation.”
Of Biden, Trump weighed in Monday on his social media site, asking, “When is the FBI going to raid the many homes of Joe Biden, perhaps even the White House?”
What are the political implications of the discovery of the documents?
Biden: While unlikely to affect the Justice Department’s decision-making with regard to charging Trump in his own case, Biden’s document disclosure could intensify skepticism among Republicans and others who are already critical that politics is the basis for probes of the former president.
There are also possible ramifications in a new, GOP-controlled Congress where Republicans are promising to launch widespread investigations of Biden’s administration.
Rep. Jim Jordan, chair of the powerful House Judiciary Committee, said Monday that the American public deserved to know earlier about the revelation of Biden’s classified documents. The Ohio Republican is among House Republicans pushing for the creation of a “select subcommittee on the Weaponization of the Federal government” within the Judiciary Committee.
Rep. Mike Turner, the top Republican on the House Intelligence Committee, has requested that the U.S. intelligence community conduct a “damage assessment” of the documents found at the Penn Center.
Trump: In its immediate aftermath, Trump and his supporters seized on the Mar-a-Lago search as a partisan attack from Democrats who had long been desirous of removing him from office.
During his 2024 campaign launch in November, at the same club agents had searched months earlier, Trump referenced the probes against him, casting himself as “a victim” of wayward prosecutors and the “festering, rot and corruption of Washington.”