This is, of course, nothing like Donald Trump having hundreds of classified documents stashed in various parts of Mar-a-Lago and refusing to give them back under subpoena. Trump’s lawyers eventually, under subpoena, did return 38 classified documents—but more than 100 others were discovered when the FBI eventually got a warrant and searched Mar-a-Lago.
But Republicans are, of course, jumping on it. “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 ranted on Truth Social.
Rep. James Comer, the incoming chair of the House Committee on Oversight and Government Reform, asked the very easy-to-answer question, “What’s the difference in what President Trump did versus what we now know President Biden did?” (Around 10 documents vs. well over 100, turned over voluntarily as soon as they were discovered vs. refused to turn over despite a subpoena, blah blah blah, gosh, what’s the difference?)
”There are a lot of people in America that think there’s a two-tier justice system in America. That there’s a difference in the way Republicans and Democrats are treated,” Comer said, while directly engaging in the partisan project of convincing Republicans that they are mistreated.
Hilariously, Marcy Wheeler notes, part of Trump’s defense on his classified documents hoard is that the National Archives and Records Administration has no right to refer him for investigation because, according to one of his lawyers, Trump’s document retention is a “noncriminal scenario” and one that “historically is unenforceable in terms of judicial enforcement.” Which might actually be the case if Trump hadn’t actively refused to comply with polite requests followed by subpoenas. So while Biden is, like Trump, under investigation over the retention of the records, there is no indication he is or will be under investigation for obstruction of justice or destruction of records, which Trump apparently is.
The current situation is also a chance for the worst of the media to talk about how The Optics and how this Complicates them. “Still, whatever the legal questions, as a matter of political reality, the discovery will make the perception of the Justice Department potentially charging Mr. Trump over his handling of the documents more challenging,” according to a New York Times piece with four bylined reporters. Many outlets, including the Times, quoted Trump’s response without fully contextualizing its dishonesty. And, of course, the right-wing media will spend the next several days, if not weeks all over it in ways ranging from misleading to breathtakingly dishonest.
But the basic takeaway is this: Biden had no more than 10 documents in a locked closet in an office in a think tank. As soon as the documents were located, Biden’s lawyers informed NARA, which quickly took possession of them. At no point did he drag his feet on an official request to return the documents. By contrast, Trump had well over 100 documents, and it took a warrant and search to recover a large majority of them. Biden has made no complaint about being under investigation. Trump has spent months loudly talking about being persecuted.