Biden and Trump: How the two classified documents investigations came to different endings

This image, contained in the report from special counsel Robert Hur, shows the box where classified Afghanistan documents were found in the garage of President Joe Biden in Wilmington, Del., during a search by the FBI on Dec. 21, 2022. (U.S. Justice Department)

Classified documents were found in a damaged cardboard box in President Joe Biden’s cluttered Delaware garage, near where golf clubs hung on the wall. A photo in former President Donald Trump’s indictment, meanwhile, shows stacks of boxes filled with documents under a chandelier in an ornate Mar-a-Lago bathroom.

In Biden’s case, special counsel Robert Hur, a former U.S. attorney for Maryland nominated by Trump, concluded in a report released Thursday that the president should not face criminal charges, despite finding evidence that Biden willfully retained classified information. Trump, on the other hand, is scheduled to stand trial on charges alleging he hoarded classified documents at his Florida estate and thwarted government efforts to get them back.

Trump, who has denied any wrongdoing in the case brought by special counsel Jack Smith, slammed the decision not to charge Biden, saying: “THIS IS A TWO-TIERED SYSTEM OF JUSTICE!” Biden, late Thursday, angrily lashed out at Hur for unflattering characterizations of his memory in the report and said he never shared classified information.

At look at the similarities and differences between the Biden and Trump investigations:

What kinds of documents are we talking about?

BIDEN: FBI agents found classified documents about Afghanistan in Biden’s Delaware garage in 2022, along with drafts of a handwritten memo Biden sent to President Barack Obama to persuade Obama not to send more troops into the country, Hur’s report said.

In an office and basement den in the Delaware home, agents also found notebooks with classified information that Biden wrote on during briefings with Obama and in White House Situation Room meetings, the report said. Investigators said the notebooks included national security and foreign policy information that touched on “sensitive intelligence sources and methods.” Hur found that on at least three occasions during interviews with his ghostwriter, Biden read aloud from classified parts from his notebooks “nearly verbatim.”

TRUMP: Prosecutors have alleged that Trump stored hundreds of classified documents in boxes as he packed to leave the White House in 2021. After a Trump attorney told the FBI that there were no more classified documents at Mar-a-Lago, the FBI searched the property in August 2022 and found more than 100 documents with classified markings, according to his indictment. Each of the 32 counts of willful retention of national defense information Trump is charged with pertains to a specific classified document found at Mar-a-Lago that were marked “SECRET” or “TOP SECRET.” Topics addressed in the documents include details about U.S. nuclear weapons and the nuclear capabilities of a foreign country.

Why did Hur not charge Biden?

Hur concluded there is not enough evidence to convict Biden of “willfully” retaining the Afghanistan documents or the notebooks. When the Afghanistan documents were found in the garage in 2022, Biden was allowed to have them because he was president at the time, the report said. To bring charges, Hur said prosecutors would have to rely on a comment that Biden had made to his ghostwriter in 2017 — when Biden was a private citizen and living in Virginia — that he had “just found” classified documents downstairs.

But Hur said Biden could convince some jurors his actions weren’t willful by arguing, for example, that he forgot about the documents shortly after finding them in 2017. It’s also possible the Afghanistan documents were never in the Virginia home at all, but were accidently kept without Biden’s knowledge in Delaware since he was vice president, Hur concluded.

Hur also cited limitations with Biden’s memory and the president’s cooperation with investigators that “could convince some jurors that he made an innocent mistake. The report described the president as “someone for whom jurors will want to identify reasonable doubt.”

“We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory,” the report said. “It would be difficult to convince a jury that they should convict him-by then a former president well into his eighties-of a serious felony that requires a mental state of willfulness.”

Regarding the notebooks containing classified information, Hur concluded that Biden could plausibly argue if there were a trial that he believed that the notebooks were his personal property and he was allowed to take them home.

“During our interview of him, Mr. Biden was emphatic, declaring that his notebooks are ‘my property’ and that ‘every president before me has done the exact same thing,’ that is, kept handwritten classified materials after leaving office,” the report said.

Other classified documents found at the Penn Biden Center, Biden’s Delaware home, and among Senate papers at the University of Delaware “could plausibly have been brought to these locations by mistake,” Hur concluded.

What have prosecutors said in Trump’s case?

Trump is accused of not only hoarding classified documents at Mar-a-Lago, but trying to hide them from investigators and working to block the government from clawing them back. Prosecutors have alleged that Trump showed off the documents to people who did not have security clearances to review them and enlisted others to help him hide records demanded by authorities.

Hur’s report says the differences between the two cases are “clear.” Unlike Biden — who cooperated with investigators, agreed to searches of his homes and sat for a voluntary interview — the allegations in Trump’s case present “serious aggravating facts,” Hur wrote.

“Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite,” the report said.

For instance, prosecutors say, after the Justice Department issued a subpoena for the records in May 2022, Trump asked his own lawyers if he could defy the request and said words to the effect of, “I don’t want anybody looking through my boxes.”

“Wouldn’t it be better if we just told them we don’t have anything here?” one of his lawyers described him as saying, according to the indictment.

Prosecutors allege that during the July 2021 meeting at Bedminster, Trump also waved around the classified attack plan to his guests. “This is secret information,” he said, according to a recording prosecutors have cited, claiming that, “as president I could have declassified it” but hadn’t.

Prosecutors have also accused Trump of scheming with his valet, Walt Nauta, and a Mar-a-Lago property manager, Carlos De Oliveira, to try to conceal security camera footage from investigators after they issued a subpoena for it. Video from the property would ultimately play a significant role in the investigation because, prosecutors said, it captured Nauta moving boxes of documents in and out of a storage room — including a day before an FBI visit to the property. The boxes were moved at Trump’s direction, the indictment alleges.