Biden documents: How the discovery of classified materials differs from Trump

The White House on Monday disclosed that lawyers for President Biden discovered what they called a “small number” of classified documents in November in an office Biden had used between his time serving as vice president and president.

The documents were turned over the next day to the National Archives, and the White House said it is cooperating with the Department of Justice (DOJ) as it conducts a review of the documents.

The news quickly drew comparisons to former President Trump, who has been in hot water over his potential mishandling of classified materials upon leaving office two years ago.

In both cases, the two men appear to have failed to follow the Presidential Records Act, which requires presidents and vice presidents to turn over documents to the National Archives for secure storage.

But there are key differences between the two cases, which many Biden allies swiftly pointed out, while several Trump supporters openly wondered if the president would also see an FBI search of his home.

Here’s a look at some of the ways the Biden and Trump discoveries of classified documents differ, based on what is known so far.

FBI not involved in retrieving Biden documents

Attorneys for Biden discovered the documents on Nov. 2, 2022, six days before the midterm elections, Richard Sauber, special counsel to Biden, said in a statement. 

The materials were discovered at an office in Washington that Biden had used while he served as an honorary professor for the University of Pennsylvania from 2017 to 2019.

The president’s lawyers alerted the National Archives the same day of the discovery, and the agency took possession of the materials the next morning. The matter has since been referred to the Justice Department for review.

The discovery has drawn pushback from Trump allies, who have sarcastically asked whether the FBI will be raiding Biden’s properties in search of more documents. After the news about Biden broke, Trump himself wondered if the FBI would search the White House. That’s because federal agents searched Trump’s Mar-a-Lago estate in August to recover sensitive government materials Trump had taken with him upon leaving office.

Federal officials had tried for months to recover materials from Trump they believed were being kept at Mar-a-Lago, some of which were discovered to be in unsecured locations.

The FBI search in August came after the National Archives last January retrieved more than 150 classified documents, The New York Times reported. Concern over how many documents Trump was holding at his property triggered the Archives to alert the Justice Department, which eventually led to the FBI search.

Trump had more documents of varying classification degrees

One key difference between the Trump and Biden cases is the sheer number of documents involved.

Multiple news outlets reported that lawyers for Biden found about 10 classified documents in a locked closet as the university office space was being prepared to be vacated. The level of classification that applies to the documents in Biden’s office has not been made public.

By comparison, a heavily redacted affidavit used to justify the August FBI search of Trump’s Mar-a-Lago property showed that authorities had discovered 15 boxes in January 2022 that contained 184 classified documents, including 25 that were marked “top secret.”

In total, The New York Times reported that the federal government has recovered more than 300 documents with varying levels of classified markings on them from Trump’s Mar-a-Lago property.

The Washington Post has reported that some of those documents describe the nuclear capability of a foreign government’s military along with top-secret U.S. operations shared with only a select few government officials.

Sources told CBS News the documents found in Biden’s office did not contain nuclear secrets.

Biden’s team alerted National Archives quickly

While the White House did not alert the public about the classified document discovery until it was reported on by CBS News on Monday, the president’s attorneys were quick to inform the National Archives about the situation.

The president’s lawyers alerted the National Archives about the documents the same day they were discovered, Sauber said.

The agency took possession of the materials the next morning. The matter has since been referred to the Justice Department for review.

“Hope context breaks through in coverage. Looks quite different from Trump situation,” Ben LaBolt, a former White House press aide, tweeted, calling the quick notification to the National Archives a “key point.”

Trump, by comparison, has been insistent that he tried to work with the National Archives and that he was forthcoming about the documents he’d taken with him. But affidavits outlining the justification for last August’s FBI search made clear that was not always the case.

The redacted affidavit showed how federal officials spent months trying to get the sensitive materials back from Mar-a-Lago without success, prompting high-ranking DOJ officials to sign off on the FBI search.

The New York Times reported that the National Archives had spent much of 2021 trying to get sensitive materials back from Trump.

Trump as president had authority over certain documents

Trump’s defenders have leaned heavily on the argument that the former president had the power to declassify classified documents and therefore must have done so with the materials he took with him from the White House.

Some Trump allies have talked about a so-called standing order by Trump to declassify documents, though Trump’s own attorneys have been unable to provide proof of any such order. 

Trump himself at one point claimed presidents don’t have to go through a formal process to declassify sensitive documents and can do so “even by thinking about it.” While that isn’t the case, a president’s ability to declassify documents has been a central talking point to push back on Trump’s potential legal exposure.

The documents discovered in November by Biden’s team, meanwhile, stem from his time as vice president, a position that does not have the power to declassify documents.

“Unlike President Trump, then-VP Joe Biden wasn’t the President when he took classified records with him when he left office,” tweeted Mike Davis, a conservative legal activist and former GOP Senate aide. “Presidents have the constitutional and statutory power to declassify and take records when they leave office. Not VPs. FBI raid? Intel assessment?”

–Updated on Jan. 10 at 8:13 a.m.