The drip-drip of news over the last week about classified files found in President Biden’s home and his post-vice-presidential office has given Republican members of Congress plenty of fodder for talking points. “Where’s the raid?” Representative Jim Jordan, the newly appointed chair of the House judiciary committee, asked in a tweet.
The Biden documents investigation was handled for almost two months by a specially chosen U.S. attorney in Illinois, but when new revelations surfaced last week, Merrick Garland — seemingly always happy to give in to bad faith framing — quickly appointed a Republican special counsel to take over the matter. This mirrors the special counsel investigation of Donald Trump’s handling of classified presidential files and his activities around the Jan. 6 insurrection.
The special counsels have given ammunition to pundits, opinion writers and G.O.P. officials to try to create a false equivalency between the two men. For many, the Biden hullabaloo manifests as a pox-on-both-their-houses scandal — he’s just like Mr. Trump!
But a closer, fuller examination of both the presidency and historical prosecutions for mishandling classified records actually makes the opposite case: Mr. Biden’s mishandling of a limited number of classified files, which upon discovery were promptly turned over to the National Archives and proper authorities, should make the reasoning, and necessity, of prosecuting Mr. Trump all the more clear.
Mr. Biden’s handling of the issue — especially given the more detailed timeline recently released by the White House — shows how an official who finds misfiled or improperly stored classified files should react. Mr. Biden’s behavior stands in sharp contrast to that of Mr. Trump, who spent months fighting with the National Archives over the files and repeatedly assured the Justice Department that he had turned over all files, even when he was still — apparently knowingly — holding onto scores of classified files. He failed to comply with a legal subpoena, and only then did the F.B.I. move to search his Mar-a-Lago residence.
Mr. Biden’s scandal so far feels more like an administrative error; there’s no evidence he even knew the documents were misplaced or in his possession, and when discovered they were promptly and properly returned to authorities. The government didn’t know they were missing (which itself is a bit of a mystery, since classified documents are usually tightly controlled, which is how the National Archives knew Mr. Trump had missing documents in the first place), and Mr. Biden didn’t try to hold onto them in the face of a legal process ordering otherwise.
In a tweet, the former Missouri Senate candidate Jason Kander compared Mr. Biden to a shopper who “realized he mistakenly failed to pay for an item in his cart” when he left a store and an alarm went off. Mr. Biden, the analogy goes, went back in and returned the items. By contrast, Mr. Trump apparently stuffed items in his pockets, and when the store alarm sounded “he ran to his car and peeled out.”
You could add to the Trump part of the analogy that he led the police on a low-speed pursuit, and then insisted the stolen items were his all along.
In the last two decades we have seen a broad spectrum of wrongdoing — both administrative and criminal — among high-ranking government officials, from Attorney General Alberto Gonzales bringing classified files home in his briefcase (in part because he forgot the combination to his office safe) to the C.I.A. director David Petraeus turning over notebooks with classified information to his biographer, who was also his lover, and the former National Security adviser Sandy Berger slipping records into his socks and other clothing to smuggle them out of the National Archives. Hillary Clinton’s email scandal in 2016, if you strip away the politics, was somewhere in the middle of the spectrum, trending more toward sloppy office management than national security threat.
If we apply the standards of Sandy Berger and David Petraeus (who were both prosecuted) versus Alberto Gonzales and Hillary Clinton (who were not), then Mr. Biden clearly falls on the noncriminal side, whereas Mr. Trump could get multiple criminal charges. Sure, Mr. Biden has made his situation harder because of ongoing revelations and bad communications to the media, but that only worsens his political problem, not any underlying criminal intent — nor does his behavior appear to rise to the legal standards of “willful retention” or “gross negligence.” Every sign we have thus far is that Mr. Biden notified the right people at the right time.
But for Mr. Trump, there’s a second wrinkle: He wasn’t a White House official, cabinet officer or intelligence chief. He was the president — and while Mr. Trump’s backers have argued that that gives him more leeway to hold onto classified records after his presidency, because he alone had the authority to declassify records and files (an argument that his backers have made in the press but that his lawyers have carefully avoided making under oath in court), the history of the presidency actually shows that Mr. Trump’s role in our government should be an aggravating factor in his case, not a mitigating one.
The Presidential Records Act of 1978 was created and passed by Congress precisely to make impossible what Mr. Trump apparently tried to do: absconding with the legacy and records of a presidency that belong rightfully to the nation, not to an individual. Senator Sam Ervin helped drive passage of the legislation and other laws after Watergate to prevent Richard Nixon from destroying the tapes and records of his administration’s corruption and mendacity.
The history that happens inside the White House belongs to the nation — not to the people who work there. It’s a core principle of a country governed by the rule of law, not by men (and women).
In keeping documents that reportedly ranged from his letters with foreign leaders to potential nuclear secrets, Mr. Trump is accused of trying to steal America’s history — apparently with forethought. When confronted, he repeatedly resisted returning that history to its rightful owners for future generations.
Mr. Trump’s situation was always going to be a case that centered on so-called prosecutorial discretion — that is, the careful weighing of how investigators have handled defendants in similar cases, whether there’s evidence beyond a reasonable doubt that a crime occurred and whether justice is served by seeking criminal charges. (Mr. Petraeus’s case, for instance, was a major factor in the decision not to charge Ms. Clinton in 2016.)
It was never going to be cut and dried whether to charge a former president; the Watergate special counsel Leon Jaworski was in some ways grateful for Gerald Ford’s pardon of Nixon because it made moot his weighty decision of whether to pursue charges against Nixon.
Inadvertently, Mr. Biden’s scandal — while unfortunate politically — provides the counterexample that Mr. Garland and the special counsel Jack Smith, who is tasked with considering charges against Mr. Trump, can weigh to possibly show how Mr. Trump’s behavior advanced from a routine administrative matter to a criminal one. To date, one looks like an unfortunate political scandal while the other is a potential crime against the country.
Mr. Trump’s case isn’t just about classified material. At its core, it is about who controls America’s history.
Garrett M. Graff is a journalist and historian and the author, most recently, of “Watergate: A New History.”
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