Biden and Trump are facing a classified-documents investigation. Here’s how the cases compare

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Twice over the past month, the FBI has descended on U.S. President Joe Biden’s private homes, looking for classified documents. This week, a former federal prosecutor took over the investigation.

The revelation that Mr. Biden may have mishandled secret government papers has certainly been politically embarrassing, particularly after he previously pilloried former president Donald Trump for the same thing.

With Biden facing his own documents probe, power of charges against Trump substantially weakened

But significant questions remain: it is unclear, for instance, what exactly was in the documents, which date back to Mr. Biden’s stints as a senator and vice-president. Nor is there a full picture of how the material wound up in, among other locations, a box in Mr. Biden’s garage.

Meanwhile, Mike Pence, Mr. Trump’s former vice-president, found roughly a dozen classified documents of his own at his house in Indiana earlier this month. As of this week, he is in discussions with the FBI about a further search of his properties.

The three cases have raised serious questions about senior government officials’ treatment of state secrets.

What have the searches turned up?

In total, Mr. Biden appears to have had about 20 classified documents in his personal possession, including at his two homes in Delaware and an office in the Penn Biden Center, a Washington think tank he previously worked for. His lawyers found the first set on Nov. 2 last year and alerted the government that day.

The FBI searched both homes, turning up more documents in Mr. Biden’s main private residence near Wilmington and nothing at his holiday retreat in Rehoboth Beach.

What was in the documents has not yet been released. CNN has reported that they included intelligence information and briefings on Ukraine and Iran. At least some were marked “sensitive compartmented information,” some of the country’s most restricted state secrets.

Mr. Trump kept at least 184 classified documents at Mar-a-Lago, his Florida estate. They reportedly included nuclear weapons-related intelligence and affectionate letters from North Korean dictator Kim Jong-un.

Is anyone in legal peril?

The unauthorized handling of classified documents is illegal, but much will turn on whether Mr. Biden, Mr. Trump and Mr. Pence took the papers home by mistake or deliberately.

People criminally convicted in previous high-profile documents cases clearly knew what they were doing. Then-CIA director David Petraeus, for instance, was caught in 2012 providing classified information to his biographer, with whom he was also having an extramarital affair. In 2003, Sandy Berger, a former national security adviser, stole intelligence documents by stuffing them up his pant leg.

Both Mr. Biden and Mr. Trump may be able to argue that their staff took classified documents to their houses by accident, after the documents got mixed in with non-sensitive papers. “The absence of knowledge and intent might, as a legal matter, pose a bar to prosecution,” said Daniel Richman, a former federal prosecutor who once advised onetime FBI director James Comey.

Mr. Trump’s handling of the documents after they were discovered may pose a larger problem. The documents only came to light because the national archives asked Mr. Trump to return them. He tussled with the government for more than a year, handing over some papers but not others, before the FBI ultimately obtained a search warrant.

Mr. Biden and Mr. Pence may have put themselves in better positions by disclosing the documents to the government proactively, said Prof. Richman, who teaches at Columbia Law School. “The focus on Trump has been because of obstruction and misleading behaviour on the part of the people around him, if not Trump himself,” he said.

Benjamin Wittes, who runs Lawfare, a blog about national-security-related legal matters, said several factors will matter when prosecutors decide whether to lay charges: what was in the documents, why Mr. Biden or Mr. Trump or Mr. Pence kept them and how they acted once they learned that they had classified information in their possession.

“I want to know what’s in Kim Jong-un’s love letters. ‘I love you Donald, let’s discuss missiles’ is a different thing from ‘I love you Donald, it was great seeing you,’” he said. “I also want to know how it came to be retained. If Donald Trump spirited it away from the White House because he wanted it as a souvenir, that’s a much more serious matter than if it was retained because it got mixed up with some other papers.”

What happens next?

Attorney-General Merrick Garland, who was appointed by Mr. Biden, has put in place two special counsels: Jack Smith for Mr. Trump’s case and Robert Hur for Mr. Biden’s.

In both cases, the special counsels will have significant independence from the Justice Department, meant to allow them to pursue the investigations and make charging decisions free from the interference of political appointees such as Mr. Garland.

How is it that high-level politicians keep taking classified documents home?

The U.S. has fairly stringent laws on the handling of state secrets. But the events of the past few months have revealed a surprising lack of adherence on the part of high-level officials.

It all comes down to the unusual nature of the presidential and vice-presidential work arrangement, Mr. Wittes said: Both live in government buildings, where classified documents are regularly brought to their desks along with piles of other papers. “The fact that it accidentally gets comingled strikes me as unsurprising,” said Mr. Wittes, who is also a fellow at the Brookings Institution, a Washington-based think tank.

More puzzling, he said, is how Mr. Biden took home classified documents as a senator. Typically, senators can only view such information by going to a secure facility and are not allowed to take it out with them.

To Prof. Richman, the problem may simply be one of technology. If Mr. Biden, Mr. Trump and Mr. Pence had reviewed the documents on secure computers, all of this could have been avoided.

“There are protocols on classified documents, but obviously mistakes get made,” he said, “particularly when you’re dealing with older people who require everything to be printed out.”