The differences between the Trump and Biden documents cases

Washington - Special counsel Robert Hur's report detailing his investigation into President Biden for allegedly retaining sensitive government information as a private citizen drew immediate comparisons to the case against former President Donald Trump, who faces 40 federal charges for obstruction and allegedly keeping dozens of sensitive documents once he left the White House.

The charges against Trump were filed by another special counsel, Jack Smith. Trump has pleaded not guilty and has continually criticized Smith's probe. He seized on Hur's findings on Thursday to call for the charges filed against him to be dropped, saying Hur's decision to not bring charges in the Biden case was evidence of the Justice Department's political motivations.

But Hur himself laid out what he said were important distinctions between the two legal cases. And experts said that how Trump and Mr. Biden responded once they were made aware they might have sensitive records and the nature of the documents themselves were key reasons for why the investigations ended differently.

The Trump and Biden documents

Federal investigators recovered roughly 300 documents bearing classification markings from Trump's club at Mar-a-Lago after he left the White House, according to court filings from the Justice Department. They were retrieved in three tranches between January and August 2022, when the FBI searched the former president's South Florida home.

Prosecutors alleged that Trump kept boxes containing documents marked classified in several places at Mar-a-Lago, including a ballroom, a bathroom and a storage room where more than 80 boxes were stacked. Many of the boxes contained "highly classified documents intermingled with other records," like photographs and newspapers.

The documents Trump is charged with retaining allegedly included information about U.S. nuclear programs; defense and weapons capabilities of the U.S. and other countries; vulnerabilities of the U.S. and its allies to attack; and how the U.S. would retaliate in response to an attack. Prosecutors said they included material prepared by the CIA, NSA, the Pentagon, the Energy Department and other intelligence agencies.

In addition to Mar-a-Lago, the special counsel alleges that some boxes with sensitive government records were brought to Trump's property in Bedminster, New Jersey, and said Trump later shared some of the information with book writers.

In Mr. Biden's case, Hur said investigators recovered dozens of documents with sensitive information that he kept after his vice presidency, including records about military and foreign policy in Afghanistan. He also had notebooks containing handwritten entries about national security and foreign policy issues. Investigators determined that 37 of those entries had top secret or secret information.

Hur's team wrote that some of the handwritten notes contained information about intelligence sources and methods, military programs and capabilities, and "[p]lans and capabilities of foreign terrorist organizations."

During Mr. Biden's interview with the special counsel, Hur wrote that the president said he likely kept the notebooks because "[t]hey are mine."

"Every president before me has done the same exact thing," Mr. Biden said, according to the report. 

A federal law known as the Presidential Records Act lays out the requirements for how a president's records are handled during and after a presidency. Jason R. Baron, former director of litigation at the National Archives, told CBS News that the law distinguishes between official presidential records and personal material.

"It is easy to understand that [Mr. Biden] believed that this material was personal in nature and that he had a right to take it home, and that is very much in contrast with former President Trump having hundreds of official documents with top secret and other classification markings on them in his residence," he said. "Those are very different, and in former President Trump's case, there is no good explanation for why he believed that those presidential records were his."

Scott Fredericksen, a former federal prosecutor and independent counsel, agreed, saying of Mr. Biden's case: "There is a fraction of the documents that former President Trump had retained here."

Timothy Parlatore, who defended Trump during key portions of the documents probe and testified before Smith's grand jury, argued that the evidence suggests Trump did not "actively and intentionally remove the documents from the White House," since they were moved by government employees who were packing up for the incoming Biden administration, a contention that could be a defense at trial. 

How Trump and Biden responded to the allegations

Efforts to retrieve government records from Trump began shortly after he left office in January 2021 and culminated in the FBI's court-authorized search of Mar-a-Lago in August 2022. A federal grand jury issued two subpoenas, one for documents and another for security footage, in the months before the FBI search.

Prosecutors alleged that Trump resisted handing over the documents for months, and was assisted by his aide Walt Nauta and Mar-a-Lago property manager Carlos de Oliveira. Both face a variety of obstruction-related charges and have pleaded not guilty.

Nauta allegedly moved a total of 64 boxes out of the storage room at Mar-a-Lago "at Trump's direction," prosecutors claim. Smith's team also said that the three allegedly unsuccessfully tried to delete videos showing the boxes had been moved after the subpoena for surveillance footage was issued.

In Mr. Biden's case, his personal lawyer discovered sensitive government documents on Nov. 2, 2022, at the Penn Biden Center in Washington, where Mr. Biden kept an office after leaving the vice presidency in 2017. The attorney notified the White House Counsel's Office, which in turn informed the National Archives. Two days later, the Archives told the Justice Department, and a U.S. attorney was soon tasked with looking into the matter.

In December, more documents relating to Afghanistan were found in the garage of the president's Wilmington home, and Mr. Biden's lawyers notified the Justice Department.

The investigation became public on Jan. 9, 2023, when CBS News reported the U.S. attorney's investigation. Attorney General Merrick Garland appointed Hur as special counsel two days later.

In the following weeks, the FBI conducted searches of Mr. Biden's homes in Wilmington and Rehoboth Beach, Delaware, with his consent. Agents later searched storage facilities at the University of Delaware.

Why Trump was charged and Biden wasn't

While the special counsel "uncovered evidence that President Biden willfully retained and disclosed classified materials" in a way that "present[ed] serious risks to national security," the report said that "no criminal charges are warranted in this matter." Justice Department policy states that sitting presidents cannot be charged criminally, but Hur said his team would have reached the same conclusion even if it didn't.

Hur himself laid out the distinctions between Trump and Mr. Biden's cases.

"Mr. Biden turned in classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations including his homes, sat for a voluntary interview, and in other ways cooperated with the investigation," the report said.

It was that cooperation, combined with how the investigation began and the evidence of his knowledge and intent, that set the cases apart, according to Hur. 

Trump, on the other hand, is accused of falsely claiming he was cooperating fully with the FBI and had turned over all documents sought by investigators, even though he continued to keep dozens of them.

"[A]fter being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it," Hur's report stated.

While Smith determined he had gathered enough evidence to bring charges against Trump, Hur wrote that "[t]he evidence does not establish Mr. Biden's guilt beyond a reasonable doubt." The special counsel raised various potential defenses the president could raise at trial, including that Mr. Biden "did not willfully retain these documents and that they could plausibly have been brought to these locations by mistake." He also commented that Mr. Biden might come across to a jury as a "well-meaning, elderly man with a poor memory."

In short, Hur and Smith — both federal prosecutors with the ultimate goal of winning convictions if charges are warranted — reached different conclusions based on their views of the evidence before them.

Fredericksen, the former federal prosecutor, said,  "The decision not to prosecute is the obvious right one" based on Mr. Biden's cooperation and the evidence in the report.

"It is not a close call at all. It is an easy decision to make," he added. 

Prosecutors "don't bring cases like this," namely "when someone voluntarily steps forward," Fredericksen said. One of the most difficult aspects of a case for a federal prosecutor is proving and establishing the intent of a defendant, he argued. According to his view of the report, "There is no evidence that the president at any time had any significant awareness that what he was doing was wrong."

But with Trump, "The proof of obstruction, lying, as alleged in the indictment … That is what reflects the intentionality of the conduct," Fredericksen said. 

Parlatore, Trump's former attorney,  said he did not think charges were warranted in either case. 

Instead, Parlatore argued the Trump and Biden investigations demonstrated a greater need for oversight over the handling of classified records in the federal government, which he said remains a "vulnerability." 

"I don't think Trump should have been charged. I don't think Biden should have been charged," Parlatore said. "I think this is something that needs to get fixed procedurally."

In:
• Classified Documents
• Presidential Records Act
• Joe Biden
• Donald Trump
• United States Department of Justice
• Politics
• Robert Hur
• White House
• Jack Smith

Melissa Quinn

Melissa Quinn is a politics reporter for CBSNews.com. She has written for outlets including the Washington Examiner, Daily Signal and Alexandria Times. Melissa covers U.S. politics, with a focus on the Supreme Court and federal courts.

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