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Biden classified docs vs. Trump classified docs: What's the difference?

The discovery of classified documents among Biden's papers is a bad look for the president, but the circumstances of the find are much different from those of the Trump case.
Win McNamee; Brandon Bell / Getty Images

The discovery of classified documents among President Joe Biden's vice presidential papers in a Washington office has led to yowls by some Republicans who say there is an unfair double standard being applied to Donald Trump's stash of classified documents — but the circumstances of the finds are very different.

The uproar began Monday after the White House confirmed a CBS News report that a “small number of documents” with classified markings that appeared to be from the Obama administration had been found at a think tank tied to Biden.

The documents were discovered in a locked closet by Biden’s attorneys as they prepared to vacate office space at the Penn Biden Center for Diplomacy and Global Engagement, Richard Sauber, special counsel to the president, said in a statement.

The University of Pennsylvania leased a suite of offices for the center in February 2018, including an office for Biden’s personal use when he was in Washington.

Some Republicans in Congress — and Trump — questioned why the FBI wasn't getting search warrants to see if Biden had more documents.

“When is the FBI going to raid the many homes of Joe Biden, perhaps even the White House?” Trump posted on his Truth Social account.

While there is still much that is not known about the Biden documents, there are key differences between the two cases — as well as some similarities.

How the documents were discovered

The National Archives — which is supposed to receive all presidential records when a president or vice president leaves office — contacted Trump officials soon after he left office in 2021 to inform them that the agency believed some documents were missing and that the Archives needed them back.

After several months of back and forth, Trump sent 15 boxes of documents from his Mar-a-Lago estate to the archives in January of last year. Court papers show officials found classified documents in 14 of the 15 boxes, including 25 that were marked top secret. In all, there were 184 documents marked classified in the boxes.

More would be found later.

In the Biden case, Sauber said the National Archives was unaware of the missing documents and hadn't made any request to Biden for their return. He said the White House counsel's office notified Archives on the day the records were found, and officials there collected them the following day.

It’s unclear how many vice presidential records and classified documents were found in the office. Sauber said only that Biden’s personal attorneys were packing files when they found “what appear to be Obama-Biden Administration records, including a small number of documents with classified markings.” He did not describe the level of classification on the documents.

Two sources familiar with the matter said less than a dozen documents with classified markings were found at the office.

Justice Department investigation

In both cases, the Archives reported the discovery of classified documents to the Department of Justice.

When the Archives informed Trump's people early last year that it was going to hand the documents over to the intelligence community for a review of any potential damage to national security, Trump's team objected and asked for a temporary delay. The Archives granted Trump's first request but denied his second, court papers show.

The FBI later obtained information that Trump had more government documents and issued a subpoena for their return. In June, Trump's lawyers turned over a packet that included 38 classified documents, including 17 marked top secret. Trump's lawyers showed the agents the storage room where the documents had been held but refused to allow them to look into boxes that were still inside, according to court filings. They also gave investigators a declaration that a "diligent search was conducted" and that "all responsive documents had been turned over," government court filings show.

The FBI then learned Trump had not fully complied with the subpoena and still had more classified documents. They obtained a search warrant for his Mar-a-Lago property in August and found over 100 documents marked confidential, secret and top secret in the storage room and in Trump's office.

Trump later sought to slow the feds' investigation by asking for a special master to review the documents and demanded their return, claiming they had been declassified and were his personal property.

Another search for documents carried out later in the year at the behest of Trump’s attorneys turned up two more documents with classified markings at a Florida storage facility used by Trump near Mar-a-Lago, NBC reported last month. Those documents were turned over to the FBI, sources said.

In the Biden case, Sauber said that since the documents were found on Nov. 2, “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.”

U.S. Attorney General Merrick Garland has asked John R. Lausch, the U.S. attorney for the Northern District of Illinois and a holdover Trump appointee, to review how the classified material ended up at the Penn Biden Center, a source familiar with the matter told NBC News on Monday.

Ian Sams, a spokesman for the White House Counsel's office, said, “This is an ongoing process under review by DOJ, so we are going to be limited in what we can say at this time. But we are committed to doing this the right way, and we will provide further details when and as appropriate.”

What did the presidents know and when did they know it?

It's unclear when exactly Trump became aware that the Archives had demanded the return of documents, but he certainly knew before the 15 boxes of documents were sent from Mar-a-Lago last January. He also interacted with FBI officials who went to retrieve the documents being handed over by his team in June.

His claims that he had declassified the documents before he left the White House and that he'd deemed them his personal property also indicate he was aware of at least some of the documents that were removed early on.

As for Biden, a source familiar with the matter said he only became aware that classified documents had been stored in his former office when his lawyers told him they had discovered them.

The president told reporters Tuesday he was "surprised" to find out there had been government records in the office, adding that he didn't know "what's in the documents.

"We're cooperating fully," he said.

By the numbers

In all, federal investigators recovered over 300 documents with classification markings from Trump. The exact number of classified documents found in Biden's office is unknown. Sauber described it as a "small number," while sources told NBC it was less than a dozen.

Security questions

The federal government has strict standards for the storage and handling of classified records. It appears those standards weren't met by Trump — who had documents in a storage facility in West Palm Beach, in a locked storage room in a well-trafficked area at his Florida resort, and in his office — or by Biden, who had them in a locked closet.

The FBI had expressed concern to Trump's lawyers about how the documents were being stored at a Mar-a-Lago in an email in June.

"Mar-a-Lago does not include a secure location authorized for the storage of classified information. As such, it appears that since the time classified documents [REDACTED] were removed from the secure facilities at the White House and moved to Mar-a-Lago on or around January 20, 2021, they have not been handled in an appropriate manner or stored in an appropriate location," the email said. "Accordingly, we ask that the room at Mar-a-Lago where the documents had been stored be secured and that all of the boxes that were moved from the White House to Mar-a-Lago (along with any other items in that room) be preserved in that room in their current condition until further notice.”

Trump has described that request as one to put an extra lock on the storage room door, which he said was done.

Legal exposure

Special counsel Jack Smith is now heading the FBI's criminal investigation into the handling of the Trump documents, in addition to an inquiry into his role in the Jan. 6 insurrection. A document that was attached to the August search warrant that's since been made public showed that investigators were looking for evidence of three crimes involving the mishandling of sensitive government records.

There's no indication at this point that the Biden probe has become a criminal investigation.

NBC News legal analyst Barbara McQuade, a former U.S. Attorney, said there are "several distinguishing factors" between the two cases.

McQuade posted on Twitter that the Justice Department prosecutes the mishandling of classified documents when there is an aggravating factor present. "Those factors are obstruction of justice, storage in a way that risks exposure, willful violation, and disloyalty to United States," she tweeted.

"In the Mar-a-Lago case, all but that last factor appear to be present. In the case of the Biden documents, there is no indication that any of the factors are met, but referral for investigation by the Chicago US Atty, a Trump appointee, seems prudent."