EXPLAINER: Comparing Trump, Biden, Pence classified papers

Biden Mexico
President Joe Biden speaks during a meeting with Canadian Prime Minister Justin Trudeau at the InterContinental Presidente Mexico City hotel in Mexico City, Tuesday, Jan. 10, 2023. (AP Photo/Andrew Harnik)
Biden
The access road to President Joe Biden's home in Wilmington, Del., is seen from the media van Friday, Jan. 13, 2023. (AP Photo/Carolyn Kaster)

Classified documents keep showing up where they shouldn't be.

The discovery of documents with classified markings at former Vice President Mike Pence's home in Indiana follows the revelation of classified materials at President Joe Biden's Delaware home and former office — and the seizure last year of hundreds of documents marked classified from Mar-a-Lago, the Florida residence of former President Donald Trump.

A look at similarities and differences among the various situations:

HOW MANY CLASSIFIED DOCUMENTS ARE WE TALKING ABOUT?

PENCE: “A small number of documents bearing classified markings” were discovered last week at Pence's home north of Indianapolis, Pence’s lawyer, Greg Jacob, wrote in a Jan. 18 letter to the National Archives and Records Administration shared with The Associated Press.

In all, four boxes containing copies of administration papers — two in which “a small number” of papers bearing classified markings were found, and two containing “courtesy copies of vice presidential papers” — were discovered, according to Jacob. The discovery came almost two years after Pence left office.

BIDEN: It's unclear precisely how many classified papers have been recovered from Biden's home and former office. Richard Sauber, special counsel to the president, said earlier this month that ���a small number of documents with classified markings” were discovered on Nov. 2, 2022, in a locked closet at the Penn Biden Center for Diplomacy and Global Engagement, a think tank in Washington, as Biden's personal attorneys were clearing out the offices.

Sauber said Jan. 12 that a second batch of documents with classified markings — a “small number," he said — had been found in a storage space in Biden's garage near Wilmington, Delaware, along with one document located in Biden's personal library in his home. Days later, Sauber clarified that six pages, not a single one, had been found in the library.

During a nearly 13-hour search on Jan. 20, FBI agents searching Biden’s Delaware home located six additional items that contained documents with classified markings and also took possession of some of his handwritten notes, the president’s lawyer, Bob Bauer, said Saturday.

TRUMP: Roughly 300 documents with classification markings — including some at the top secret level — have been recovered from Trump since he left office in January 2021.

In January 2022, the National Archives retrieved 15 boxes of documents, telling Justice Department officials they contained “a lot” of classified material. In August, FBI agents took more than 33 boxes and containers totaling 11,000 documents from Mar-a-Lago, including roughly 100 with classification markings found in a storage room and an office.

HOW QUICKLY WERE THE CLASSIFIED DOCUMENTS TURNED OVER?

PENCE: Jacob said the records were discovered on Jan. 16, secured in a locked safe and retrieved by FBI agents on Jan. 19. The four boxes of papers were delivered to the Archives on Jan. 23.

BIDEN: After the materials were discovered at the think tank on Nov. 2, Biden's personal attorneys immediately alerted the White House counsel's office, which notified the National Archives, Sauber said. The Archives took custody of the documents the next day.

Biden’s personal lawyers then began examining other locations where records might have been shipped after Biden left the vice presidency in 2017. They found documents on Dec. 20 in his Wilmington garage and on Jan. 11 and 12 in his home library.

Sauber said that the Justice Department was “immediately notified” and took custody of the records.

On Jan. 20, Biden voluntarily allowed the FBI to search his Wilmington home, where additional documents were located.

TRUMP: A Trump representative told the National Archives December 2021 that presidential records had been found at Mar-a-Lago, nearly a year after Trump left office. Fifteen boxes of records containing some classified material were transferred to the Archives in January.

A few months later, investigators from the Justice Department and FBI visited Mar-a-Lago to get more information about classified materials taken to Florida. Federal officials served a subpoena for some documents believed to be at the estate.

In August 2022, FBI agents conducting a search retrieved 33 boxes from Mar-a-Lago while executing a warrant that showed they were investigating possible crimes including the willful retention of national defense information and efforts to obstruct the federal probe.

The search came after lawyers for Trump provided a sworn certification that all government records had been returned.

WHAT ABOUT POSSIBLE CHARGES?

PENCE AND BIDEN: There is no indication either was aware of the existence of the records before they were found and turned over.

It appears both sides turned over the records quickly, without intent to conceal. That’s important because the Justice Department historically looks for willfulness, or an intent to mishandle government secrets, in deciding whether to bring criminal charges.

In Biden's case, even if the Justice Department were to find the case prosecutable on the evidence, its Office of Legal Counsel has concluded that a president is immune from prosecution during his time in office. Former special counsel Robert Mueller cited that guidance in deciding not to reach a conclusion on whether Trump should face charges as part of his investigation into coordination between the 2016 Trump campaign and Russia.

On Jan. 12, Attorney General Merrick Garland appointed a special counsel to investigate the discovery of documents in Biden's possession. Robert Hur, the former Trump-appointed U.S. attorney in Maryland, will lead the investigation.

TRUMP: The former president possibly faces exposure for obstruction over the protracted battle to retrieve the documents. And, since he's no longer in office, he wouldn't be afforded protections from possible prosecution.

In November, Garland appointed Jack Smith, a veteran war crimes prosecutor with a background in public corruption probes, to lead investigations into Trump's retention of classified documents, as well as key aspects of a separate probe involving the Jan. 6, 2021, insurrection and efforts to undo the 2020 election.

WHAT HAVE THE THREE MEN HAD TO SAY?

PENCE: In August, Pence told The Associated Press that he did not take any classified information with him when he left office, answering, “No, not to my knowledge” when asked directly if he had retained any such information.

As vice president, Pence would have had the power to declassify some documents, though he hasn’t said that he did.

BIDEN: Biden said earlier this month that he was “surprised to learn" that documents had been found at his think tank. He said he didn't know what was in the material but took classified documents “very seriously.”

His team did what they should have done,” Biden said. “They immediately called the Archives.”

Biden told reporters at the White House Jan. 12 that he was “cooperating fully and completely” with a Justice Department investigation into how classified information and government records were stored.

TRUMP: Trump, who had the ability when he was president to declassify documents, has contended at times that he did so regarding the documents that he took with him — though he has provided no evidence of that. He said in a Fox News interview in September that a president can declassify material “even by thinking about it.”

The former president has called the Mar-a-Lago search an “unannounced raid” that was “not necessary or appropriate” and represented “dark times for our nation.”

WHAT ARE THE POLITICAL IMPLICATIONS?

PENCE: As he lays the groundwork for a possible 2024 White House bid, the document discovery thrusts Pence into the debate over the handling of secret materials by officials who have served in the highest ranks of government. He had previously insisted that he followed stringent protocols regarding classified documents.

BIDEN: His document disclosure could intensify criticism by Republicans and others who say that if Trump is guilty of anything, so is he.

There are also possible ramifications in a new, GOP-controlled Congress where Republicans are promising to launch widespread investigations of Biden’s administration.

House Speaker Kevin McCarthy, a California Republican, has said, “I think Congress has to investigate this." The top Republican on the House Intelligence Committee, Ohio Rep. Mike Turner, has requested that intelligence agencies conduct a “damage assessment” of potentially classified documents.

TRUMP: The documents probe is one of many that complicate the former president's bid for the White House in 2024, particularly after it became clear that the DOJ had launched a criminal investigation into the retention of top secret government information.

Trump and his supporters have described the Mar-a-Lago search as a partisan attack from Democrats.

During his 2024 campaign launch in November, at the same club agents had searched months earlier, Trump cast himself as “a victim” of wayward prosecutors and “festering, rot and corruption of Washington.”

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Meg Kinnard can be reached at http://twitter.com/MegKinnardAP

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