Why is Donald Trump facing 40 felony charges for conduct that appears similar to Joe Biden’s mishandling of classified material, when Biden is not being prosecuted? This question has been raised by Trump’s supporters after Special Counsel Robert Hur, who was appointed by Trump, released his findings about Biden last week. However, Hur’s report includes important details that could explain the different outcomes in these two cases. While Biden’s actions may contradict his stated concern for national security, the evidence of criminal intent, including obstruction and improper retention of defense information, is much stronger in Trump’s case. When Trump left the White House in January 2021, he took thousands of presidential records, including over 300 marked as classified. The superseding indictment released by Special Counsel Jack Smith last July lists 32 of these records as the basis for charges under 18 USC 793(e). This provision applies to someone who “willfully retains” national defense information when they have reason to believe it could harm the United States or benefit a foreign nation. Hur’s report focuses on two types of records that Biden kept after serving as vice president: 1) classified documents about military and foreign policy in Afghanistan, and 2) notebooks containing handwritten entries about national security and foreign policy that could reveal sensitive intelligence sources and methods. FBI agents found both types of material in various locations in Biden’s home in Wilmington, Delaware, including the garage, offices, and basement den. According to Hur, there is evidence that when Biden left office in 2017, he believed he was allowed to keep the notebooks in his home. In an interview with Hur’s office, Biden stated that the notebooks were his property and that every president before him had done the same thing, citing President Reagan’s diaries that contained classified information. Hur does not agree with Biden’s interpretation of the law, but acknowledges that it is supported by historical practice. He notes that President Reagan also kept his diaries with classified information at his California home after leaving office, and no federal agency took action to investigate or retrieve them. In conclusion, while Biden’s actions may have been in violation of the law, there is historical precedent for former presidents keeping classified materials in their personal possession.
