Legal experts pour cold water on Trump’s victory lap after classified docs found at Biden’s office

Trump's lawyers falsely affirmed they'd returned the documents, in violation of a subpoena. Biden's returned them

By Igor Derysh

Managing Editor

Published January 10, 2023 9:11AM (EST)

Donald Trump, Merrick Garland and Joe Biden  (Photo illustration by Salon/Getty Images)
Donald Trump, Merrick Garland and Joe Biden (Photo illustration by Salon/Getty Images)

Attorney General Merrick Garland assigned the Trump-appointed U.S. attorney in Chicago to review 10 documents marked classified that were found at the Penn Biden Center for Diplomacy and Engagement in Washington, according to CBS News, but legal experts say the matter is vastly different from the criminal probe into documents found at former President Donald Trump's Mar-a-Lago residence.

Personal attorneys for Biden discovered about 10 documents from Biden's vice-presidential office while "packing files housed in a locked closet to prepare to vacate office space at the Penn Biden Center in Washington, D.C.," a think tank affiliated with the University of Pennsylvania, Biden's special counsel Richard Sauber told CBS News.

The documents were in a box with unclassified papers, according to the report. The materials were discovered on November 2 and the White House counsel's office immediately notified the National Archives, which took possession of them the next day, according to Sauber.

"The discovery of these documents was made by the President's attorneys," Sauber told CBS. "The documents were not the subject of any previous request or inquiry by the Archives. Since that discovery, the President's personal attorneys have cooperated with the Archives and the Department of Justice in a process to ensure that any Obama-Biden Administration records are appropriately in the possession of the Archives."

Biden learned of the documents after the discovery by his lawyers and is not familiar with the contents of the documents, according to the report.

The National Archives notified the Justice Department and Garland assigned John Lausch, the U.S. attorney for the Northern District of Illinois, to find out how the materials ended up at the Penn Biden Center. Lausch is one of two Trump-appointed U.S. attorneys still in office. The other, Delaware U.S. Attorney David Weiss, is investigating Biden's son Hunter.

Lausch is expected to submit a report to Garland, who will determine with any additional action is necessary.

Trump and fellow Republicans seized on the news, questioning the difference between the documents discovered at the Penn Biden Center and the dozens of documents marked classified found by the FBI at Mar-a-Lago after Trump failed to turn them over in response to a grand jury subpoena and his lawyers affirmed that he had returned all of the documents.

"The amount was 54 Million Dollars that the Biden Think Tank received from China. That's a lot of money. They saw the Classified Documents!" Trump wrote with no evidence on Truth Social, citing the total amount of Chinese gifts donated to the University of Pennsylvania, not the Biden Center itself.

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"Biden giving China Highly Classified Documents would be a bridge too far. I certainly wouldn't do that. Not a good situation for our Country to be in!" Trump wrote in a subsequent post.

There is no evidence Biden gave China any government documents nor that he was aware of their existence.

Trump shared posts from allies like Reps. Marjorie Taylor Greene, R-Ga.; Rep. Andy Biggs, R-Ariz.; and Ronny Jackson, R-Texas, baselessly accusing Biden of improperly taking the documents and concealing them while his DOJ went after Trump.

"When is the FBI going to raid the many homes of Joe Biden, perhaps even the White House?" Trump questioned.

But legal experts say the matter bears little resemblance to Trump's months-long refusal to turn over documents from his residence before the August FBI search.

"Biden's team did exactly what you're supposed to do. When you find improperly stored classified documents, you immediately notify the government — and you turn it over immediately," national security attorney Bradley Moss told Insider. "The reason Donald Trump is in criminal jeopardy right now isn't just because of the documents being improperly stored. It was the obstruction. That is why it has gotten to the point it has, where we're looking at the real possibility of a criminal indictment," he added.

Former U.S. Attorney Joyce Vance tweeted that Trump's "cover-up proves malicious intent."

"If it was a mistake, Trump would have returned it as soon as NARA asked. That's why DOJ has a consistent record of requiring a plus factor like obstruction before indicting these cases. If Trump had done what Biden did, no investigation," she wrote. "There's a big difference," she added, "between a mistake Biden wasn't aware of & Trump repeatedly refusing to turn over items & letting his lawyers lie to DOJ."

Conservative attorney George Conway noted that Trump's decision to retain national security information and fail to deliver it to the government as required under the law also "expressly violates the Espionage Act."

"Trump clearly did that; there's no suggestion Biden did," he tweeted.

"The situations couldn't be more different," wrote Harvard Law Professor Laurence Tribe. "But that won't stop the False Equivalence Squad from drooling all over this. 'But her emails' will become 'But his documents.' Sick — but effective."

By Igor Derysh

Igor Derysh is Salon's managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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