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Scoring Trump, Biden and Hillary on Classified Documents

Whataboutism rules the day in Trumpworld. What about Hillary? What about Biden? How could the feds indict Trump and not them? Selective prosecution! Weaponization of the Justice Department!

Okay, what about it? Let’s go to the scorecard.

Government documents physically removed from the White House

Trump: Thousands
Clinton: 0
Biden: Unknown

According to the federal grand jury indictment filed on June 8, Trump took hundreds, likely even thousands of government documents from the White House, including more than 300 that contained prominent classification markings, and moved them to his homes at Mar-a-Lago and his golf club in Bedminster, New Jersey.

Clinton was never accused of physically removing any documents from the White House or any other government location. Rather, the accusation against Clinton was that she used a private email server to conduct government business and that some of the communications on the server, although not marked as classified (see “Documents containing classification markings” below), were judged in hindsight to contain classified information.

Trump’s removal of classified documents from the White House actually resembles the conduct of then-National Security Advisor Sandy Berger more than it resembles anything Hillary Clinton did. 

In 2005, Berger pleaded guilty to criminal charges after taking copies of a highly classified report from a reading room at the National Archives. He said he took the documents so that he could review them in his office to prepare himself for testifying before a commission investigating the September 11 attacks, a fact that the Justice Department never disputed. He was fined $50,000 and sentenced to two years of probation and community service.

While Berger, like Trump, illegally took classified documents out of secure government locations, Trump’s conduct was far worse. Trump’s removal of classified documents not only dwarfed Berger’s in scale but was also more sinister in context. Berger’s reason for taking the documents, while not a legal defense, was at least related to the performance of his official duties as national security advisor. 

Not so Trump. 

Whatever weird mix of political and psychological pathology impelled Trump to hoard documents containing the most sensitive government secrets, it had nothing to do with the performance of any official duties. He was already out of office, was not asked to perform any duties for the current administration, and didn’t even have a security clearance.

Biden, like Trump, was reportedly found to be in possession of presidential records, including some classified documents which should have been returned to the Archives years ago when Biden left the vice presidency.

We don’t yet know how many government documents were found to have been in Biden’s possession. While news reports have characterized the quantity of classified documents possessed by Biden as about a dozen, there could be other, unclassified government documents.

A full accounting of the Biden documents has yet to be made public, but at this point there is no reason to believe that it was anything other than inadvertent. Either way, the facts will undoubtedly be revealed when the special counsel investigating Biden completes his assignment. At that point, depending on the results of the investigation, Biden will either be charged or not, but it will have nothing to do with Trump.

Documents marked as classified taken from White House

Trump: More than 300
Biden: Probably about a dozen
Hillary: 0

Yes, that’s right: Hillary zero.

The FBI did not find a single document bearing classification markings on Clinton’s email server, much less documents marked as secret or top secret. Among the approximately 30,000 government emails on Clinton’s server, the FBI found only three documents that contained a lower-case “c” buried somewhere in the text, indicating that the documents contained “confidential” information, the lowest category of classification. Two of the three were later found to have been mistakenly marked in the first place. The FBI also found some 110 documents that they interpreted, in hindsight, contained unspecified classified “information,” although none contained any classification markings.

That’s it. 

Trump is a whole different story. According to the indictment, Trump took over 300 documents bearing classification markings out of the White House and dumped them in a variety of unsecured locations at Mar-a-Lago, including his office, his bedroom, and a bathroom.

The documents strewn all over Mar-a-Lago (some of which Trump later moved to New Jersey) contained some of our nation’s most sensitive and closely guarded secrets. Trump took documents regarding the defense and weapons capabilities of both the United States and foreign countries, U.S. nuclear programs, military vulnerabilities of the United States and its allies, and plans for retaliation in response to a foreign attack. The documents were prominently marked with classifications including Top Secret (unauthorized disclosure could reasonably be expected to cause “exceptionally grave damage to the national security), SCI (sensitive compartmented information), NOFORN (not releasable to foreign nationals), Top Secret//Special Handling, and the like. It was heavy stuff, clearly marked as such.

Biden, like Trump, was reportedly found to be in wrongful possession of documents bearing classification markings, but that’s where the similarity ends, at least insofar as is publicly known.

The classification levels of the dozen or so classified documents reported to have been in Biden’s possession hasn’t yet been disclosed. A case to hold Biden accountable, if there is one, has not yet surfaced. If the special counsel investigation of Biden turns up damning evidence against him, he will become a legitimate candidate for prosecution after he leaves office. If not, not.

None of that, however, would have any bearing on whether Trump should be held accountable for his own alleged crimes.

Direct personal involvement in illegally taking and keeping classified documents

Trump: Extensive
Clinton: Not Applicable (she didn’t take any documents)
Biden: Unknown, but not likely

The indictment alleges that Trump was “personally involved” in the process of packing the boxes he took to Mar-a-Lago from the White House. Trump personally directed that the documents be stored in unsecure locations including a storage room accessible from “multiple outside entrances,” including a pool patio “through a doorway that was often kept open.”

Trump not only directed that boxes of documents be brought from the White House to Mar-a-Lago; he also later directed that some of the boxes be moved from Mar-a-Lago to the Bedminster club.

Trump’s employees showed him pictures of a wall in the storage room where dozens of boxes were stacked. On his instructions, Trump’s aides brought boxes from the storage room to his residence for his review, and subsequently from Mar-a-Lago to New Jersey. 

To date, nothing has been disclosed suggesting that Biden was personally involved in the process of moving or storing the handful of documents that were found on his premises, or that he even knew he had them.


Obstruction of a federal grand jury investigation

Trump: Yes
Clinton: No
Biden: No

On May 11, 2022, Trump received a grand jury subpoena requiring him to turn over all documents “bearing classification markings.” Trump knew about the subpoena and was informed by his attorneys that they needed to search for responsive documents and provide a certification that they had complied with the subpoena. Trump told his attorneys that he didn’t want them, or anybody else, looking through his boxes. He suggested it would be better “if we just told them we don’t have anything here,” or that “there are no documents.”

Trump also knew that his attorneys intended to search for the documents by looking through the boxes stored in the Mar-a-Lago storage room. And he knew the precise date on which his attorneys planned to conduct their search, June 2.

After learning about the planned search of the boxes in the storage room, Trump directed an employee to remove boxes from the storage room and take them to his residence. At Trump’s direction, 64 boxes were removed from the storage room prior to the date of the search. Then, shortly before the search, 30 of the 64 boxes that had been removed were returned to the storage room. In other words, some 34 boxes were not returned or searched by the attorneys, and nobody (except Trump, and possibly his valet and co-defendant Waltine Nauta) knows whether Trump removed documents from the 30 boxes that were returned.

Trump’s attorneys completed their search of the boxes in the storage room on June 2, as planned. They found some 38 documents with classification markings and placed them in a Redweld folder. The attorneys then met with Trump in the Mar-a-Lago dining room and informed him that they had completed their search. Trump suggested that his attorney take the documents to his hotel room and put them in a safe. The attorney’s impression was that Trump wanted him to pluck out “anything really bad” before turning the folder over to the government.

The next day, Trump’s attorneys, apparently rejecting Trump’s suggestion to deep-six the documents, handed over the Redweld folder to the Justice Department, along with a sworn certification that they had conducted a “diligent search” and returned “any and all” documents responsive to the subpoena, meaning all documents bearing classification markings.

The certification, of course, was monumentally untrue. The so-called “diligent search” was, at best, a search of only one location at Mar-a-Lago, the storage room, not any of the other locations in which boxes had been stored or to which they had been moved at Trump’s direction.

And Trump’s lawyers had not produced all of the responsive documents. Not even close. When the FBI executed a search warrant at Mar-a-Lago three months later, they found another 100 or so documents with classification markings among the documents Trump had taken from the White House and failed to turn over in response to the subpoena.

The idea that Trump and his attorneys were given the bum’s rush without sufficient time to search the boxes for documents responsive to the subpoena, floated by some of Trump’s apologists, is nonsense. Time was never the issue: Trump’s attorneys didn’t even start to search the boxes until three weeks after they received the subpoena, and they completed the search in less than four hours on a single day. The problem was that they searched in the wrong place. They only searched the boxes in the storage room, not the dozens of boxes that Trump had squirreled away elsewhere.

They didn’t need more time. Searching through 80-or-so boxes containing a mix of personal items and government documents is not a terribly time-consuming chore. Any law firm or law enforcement agency can sort through 100 boxes and pluck out the documents with prominent classification markings in a few hours—not months, not weeks, not days. 

Ask any lawyer who has ever represented a client in a complex business lawsuit, and you’ll learn that attorneys are regularly confronted with productions of millions of documents, often in electronic form. A volume of 100 or so physical boxes that include a mixture of personal items and documents is a walk in the park, especially if the lawyers don’t need to examine the content of the documents, only to identify those with prominent facial classification markings.

If you don’t know any lawyers to ask, take it from anyone who’s ever moved. It takes longer to pack the boxes than to unpack them, and you don’t have an army of lawyers and aides helping you.

It took the FBI only “a matter of hours” after conducting the Mar-a-Lago search to identify twice as many documents with classification markings as Trump’s legal team certified they had found in their purported “diligent search.”

What Trump and his team lacked was not time, but professionalism and integrity.

As to Clinton, there was never a hint that she withheld or refused to turn over her email servers to the government as soon as they were requested. She was never even served with a subpoena, much less accused of failure to comply with one.

Same with Biden. By all accounts, his attorneys promptly reported and returned the handful of classified documents immediately after discovering them. There was never a need for a subpoena. Nevertheless, if the special counsel investigating Biden finds evidence that he, like Trump, lied to or played games with government investigators, Biden too likely will (and should) be charged with obstruction.

But that would not mitigate the obstruction case against Trump in any way.

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