With hindsight, Joe Biden may regret having called Donald Trump’s attitude “irresponsible” with sensitive information. For three weeks, revelations in dribs and drabs on confidential documents found in a former office of Biden and in his garage have been rather messy for the American president. As with Donald Trump, the Minister of Justice has appointed a special prosecutor to investigate these failures. But if the threat of an indictment is very real for his predecessor, Joe Biden seems, for the moment, to lose political capital.
The scale: Ten times more confidential documents at Trump than at Biden
For Donald Trump, the soap opera lasted more than two years. The National Archives first claimed and obtained 15 boxes taken by Trump’s teams during his move from the White House to Mar-a-Lago containing 184 confidential documents. Trump’s attorneys later handed over an additional 38 sensitive after a court subpoena. And the FBI, which suspected that there were still some, found 103 others during a search, some of which were marked “top secret”. According to washington post, the most sensitive concerned the defensive nuclear capabilities of a foreign country. Altogether, this makes a total of 325 problematic “classified” documents. As president, Donald Trump certainly had the power to declassify any document, but he does not appear to have followed the necessary procedure – and his defense of declassification “by thought” does not convince legal experts.
Joe Biden’s teams undertook an audit last year. In early November, they notified the National Archives that sensitive documents dating back to Biden’s vice presidency had been discovered in one of his former offices at the Penn Biden Center at the University of Pennsylvania. On December 20, the president’s lawyers then found, in the garage of the Wilmington house, “a small number of documents” potentially confidential, and notified the Department of Justice. On January 11, these lawyers unearthed a confidential document, this time in the room adjacent to the garage of the house. The next day, the lawyer for the presidency discovered the five additional pages there. We do not know the official figure, but according to CBS, we were around twenty documents, some “top secret”, before the last salvo, which would make a total of 26.
Legal risks: Biden protected while he is president, Trump faces the risk of obstruction
A 1978 law obliges American presidents and vice-presidents to transmit, at the end of their mandate, all their emails, letters and other working documents to the National Archives. Joe Biden implied that he was unaware of the presence of these documents, and his lawyers assured that they had been moved “inadvertently”, and that they were collaborating with the Department of Justice. This is a crucial point: “the Department of Justice (DOJ) rarely prosecutes” when a violation of the 1978 law is “accidental and there is no obstruction”, according to Moss. Not to mention that the DOJ considers that a sitting president cannot be indicted – he can however be retroactively to the end of his term.
Donald Trump no longer enjoys this protection. And the FBI search shows that he was targeted – before a special prosecutor was appointed – by an investigation for “deliberate” withholding of classified documents. Clearly, the former president is accused of having voluntarily had these documents transported in his boxes, and of having refused for 18 months to return them. Charges, in theory, each punishable by a maximum of 10 years in prison.
What is certain is that these two investigations by independent prosecutors risk weighing on the presidential election of 2024, when Donald Trump has already started and Joe Biden is thinking about it. Even if technically, neither an indictment, nor even a conviction, can prevent a person from being a candidate.