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The Justice Department is currently reviewing an unidentified number of classified documents that President Joe Biden's lawyers found in his former office last fall. The president worked at the Penn Biden Center between the end of his vice presidency in 2017 and the launch of his presidential campaign in 2020.
The discovery of the documents was made by Biden's team on November 2, 2022—only days before the midterms—and the lawyers immediately informed the National Archives and Records Administration (NARA) of the findings, according to the White House. The agency retrieved the documents the next morning, according to reports, and informed the Justice Department.
It's unclear why the White House did not disclose the finding prior to a CBS news story on the documents.
Newsweek reached out to the White House for comment.
Donald Trump—as well as several conservative pundits and Republicans in the House of Representatives—were outraged upon discovering that classified documents were found in Biden's former office. They called on the Justice Department to treat the president the same way Trump was, and wanted the FBI to raid Biden's home.
"When is the FBI going to raid the many homes of Joe Biden, perhaps even the White House? These documents were definitely not declassified," Trump wrote on his official page on the social media platform Truth Social, following a report on the discovery of the documents.
While parallels could be drawn between the handling of classified documents by both President Biden and former President Trump, there are several crucial differences between the two cases.
We do not know yet what the classified documents found in Biden's office at the Penn Biden Center contain, their level of classification, or how many they are, while we do know how many were found in Trump's possession.
Richard Sauber, special counsel to Biden, said in a statement on Monday: "The White House is cooperating with the National Archives and the Department of Justice regarding the discovery of what appear to be Obama-Biden Administration records, including a small number of documents with classified markings...The documents were not the subject of any previous request or inquiry by the Archives."
Officials knew that Trump had taken 15 boxes full of documents to his Florida home after leaving office in January 2021, and demanded their return. Among the material in the boxes were government documents "marked as classified national security information," letters, gifts and mementos, according to NARA.
The affidavit justifying the FBI raid of Mar-a-Lago last August said that Trump was holding 184 documents marked as classified at the Palm Beach resort, 25 of which were marked "top secret." Following the FBI search, The New York Times reported that over 300 documents with differing levels of classifications were found at Trump's residence.
Two more documents bearing classification markings were later found at a storage unit in Florida, according to reports. The Washington Post reported that some of the classified documents were related to the nuclear capability of a foreign government's military and to top-secret U.S. operations.
Biden and Trump were covering different roles at the time of their handling of the classified documents. Trump's classified documents date back to the time of his presidency, while the documents found in Biden's office belong to the time of Biden's vice presidency under then-President Obama.
Trump had removed the classified material from the White House after leaving office, in an apparent breach of the Presidential Records Act, which dictates that presidential documents are not the president's property and must be handed over to NARA when leaving office.
Vice presidents are also covered under the Presidential Records Act, making both Trump and Biden subject to this law.
Trump as president had the power to declassify the documents—something that Biden as vice president at the time could not do. There's no evidence that Trump issued an official order to declassify the documents found at Mar-a-Lago last year.
A fourth, crucial difference between the two cases is the way Trump's and Biden's classified documents were obtained by authorities.
Biden's lawyers notified NARA on the day they found the documents at the Washington DC think tank, while affidavits linked to last August's FBI raid of Mar-a-Lago show that Trump's team did not fully cooperate with NARA in handing over the documents held at the Florida resort.
Documents show that officials tried to retrieve the sensitive material taken by Trump after leaving office for months without success, leading the Justice Department to escalate the matter to the FBI.
"Cases are very different. Most notably, when Biden's lawyers found these documents, they immediately notified the Archives and turned them over," lawyer and former federal prosecutor Peter Zeidenberg told Newsweek.
"In Trump's case, it was the government that realized the documents were missing and then tried, repeatedly and ultimately unsuccessfully, to get them back. Even after being served with a grand jury subpoena, Trump did not return all of the documents," he said.
"And in Trump's case, these highly classified documents were scattered all over his hotel, including in unlocked storage areas and his desk drawer. Finally, Biden had a security clearance throughout the time he had these documents, while Trump's security clearance was revoked after he left office. So cases are really only superficially similar."
Update 01/10/23, 10:16 a.m. ET: This article was updated with comment from lawyer Peter Zeidenberg.
About the writer
Giulia Carbonaro is a Newsweek reporter based in London, U.K. Her focus is on the U.S. economy, housing market, property ... Read more