A large part of the appeal that enabled Joe Biden to win the presidency was his promise to end the Trump administration’s often disruptive practices and restore normalcy to Washington.
In many ways, he has succeeded, in part because of his low-key, businesslike approach toward managing the government and his restoration of the traditional means of dealing with Congress.
But his administration has sometimes seemed slow in responding to those unexpected events all presidents confront. The latest is the discovery of classified documents in an office he once used, his Delaware garage and his home.
The situation has some disturbing parallels with the way former President Donald Trump took some 300 classified documents with him when he left the White House instead of turning them over to the National Archives and Records Administration.
At the same time, there are significant differences. Trump refused for months to return his papers voluntarily to the archives agency, while Biden’s lawyers appear to have done so as soon as they were discovered.
As Republican critics have pointed out, none of this was made public until it leaked into the press, reported initially by CBS News. Though the initial discoveries were made before last November’s midterm elections, they only became public some two months later. And the initial disclosures did not mention that additional documents had already been found.
Whether the situations involving either president will lead to criminal charges is premature to say. Federal law says “unauthorized removal and retention of classified documents” is a crime, punishable by up to five years in prison.
The FBI’s standard, enumerated by former director James Comey during the 2016 Hillary Clinton probe, is that there needs to be “clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice.”
Biden may be off the hook, since the Justice Department has repeatedly ruled a sitting president can’t be prosecuted. Still, Attorney General Merrick Garland had no choice but to invoke the same legal procedure as in Trump’s case — appointing an independent special counsel whose findings will presumably be made public.
Some analysts have already concluded the Biden discoveries preclude federal prosecution of Trump, because of the optics of a Democratic administration prosecuting the former Republican president — and Biden’s potential 2024 opponent. But Trump’s repeated refusal to return requested documents could loom large in any decision on whether to charge him.
Besides, mishandling documents is just one area in special counsel Jack Smith’s purview. He also is examining Trump’s role in inciting the Jan. 6 insurrection that took over the Capitol and tried to prevent congressional certification of Biden’s 2020 victory as well as his other extra-legal efforts to block Biden’s victory — like trying to substitute unelected Trump electors for the real ones.
The discovery of Biden’s documents complicates the politics of this. But it shouldn’t change the government’s ultimate decision on whether legal action is warranted against the former president.
Morning Briefing Newsletter
Get a rundown of the latest local and regional news every Mon-Fri morning.
