Document Drama Differs Between Biden & Trump : The NPR Politics Podcast Both the president and his predecessor are facing investigations from the Department of Justice over the potential mishandling of classified documents. But the two cases have strong differences between them, both in terms of scale and practice.

This episode: White House correspondent Asma Khalid, national security correspondent Greg Myre, and senior political editor and correspondent Domenico Montanaro.

This episode was produced by Elena Moore and Casey Morell. It was edited by Casey Morell. Our executive producer is Muthoni Muturi. Research and fact-checking by Devin Speak.

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Document Drama Differs Between Biden & Trump

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ELIZABETH: This is Elizabeth (ph) in Fullerton, Calif. I'm currently watching the rain from my office window as we're hit by yet another storm here in Southern California. This podcast was recorded at...


12:12 p.m. Eastern time on Wednesday, January 11 of 2023.

ELIZABETH: Things may have changed by the time you hear it, but hopefully we'll have dried out a bit here in Orange County. Enjoy the show.


KHALID: Gosh - have you seen the photos, though, out of California?


KHALID: It's wild - really wild.

Well, hey there. It's the NPR POLITICS PODCAST. I'm Asma Khalid. I cover the White House.

MONTANARO: I'm Domenico Montanaro, senior political editor and correspondent.

KHALID: And today on the show, we are joined by Greg Myre. He covers national security for NPR. Greg, it is always good to have you with us.

GREG MYRE, BYLINE: Oh, my pleasure to be here.

KHALID: So if you all have been watching the news lately on TV, you have probably heard stories like this.


NORAH O'DONNELL: The Department of Justice is reviewing classified Obama-Biden records found at a private office once used by Joe Biden after he was...

AMNA NAWAZ: House Republicans are adding to their list of priorities - investigating a small number of potentially classified documents discovered at a private office that President Biden used after he was...

PAULA REID: Now, when these materials were discovered, the White House counsel's office notified the National Archives. They took possession of the materials, we're told, the following morning.

KHALID: And maybe you're thinking, hey, hold up. Wait a second. This all sounds a bit familiar.


KAITLAN COLLINS: And, with the former president himself confirming that the FBI has executed a search warrant on his home in Palm Beach, Fla., today, he said in a statement that...

UNIDENTIFIED REPORTER #1: According to a source familiar with the search, it was related to classified information the former president allegedly took with him to Mar-a-Lago after leaving the White House.

KHALID: But there are some key differences in these two stories - between the classified documents found at Trump's Mar-a-Lago estate and the classified docs found in a locked closet at the Penn Biden Center - this think tank in Washington, D.C. So today on the show, we're going to dig into what we know about both of these cases, why the stories are important and ultimately what could come out of them. The Department of Justice is looking into both of these cases, we should note, and President Biden addressed his case yesterday in Mexico City for what I believe was actually the first time he spoke publicly about this all.


PRESIDENT JOE BIDEN: And they did what they should have done. They immediately called the Archives - immediately called the Archives - turned them over to the Archives. And I was briefed about this discovery and surprised to learn that there were any government records that were taken there to that office.

KHALID: So Domenico, I want to start with you. What else do we know about the documents that were found in the office that President Biden used?

MONTANARO: We know that there's a small amount of documents that were found in a file folder. And when Biden's personal attorneys found these documents as they were moving his boxes to a different place, they immediately called the National Archives. We know the Archives weren't looking for these documents, that the Biden team is the one that turned them in. And that makes it very different from what we were looking at with former President Trump, both in terms of scale and intent. We shouldn't really conflate the two because they're just not equivalent.

KHALID: So to follow up on that, Domenico, I mean, how is this different than what we saw last year with the FBI raid at Mar-a-Lago?

MONTANARO: Well, first of all, in scale, we're talking about a small amount of documents in this file folder that Biden had in this closet at this Penn Biden Center that he says he wasn't aware of. Compare that to Trump where there are more than 160 documents that had classified markings so, on-scale-wise, much more, No. 1. And I think what's more important is intent. And when you talk to former federal prosecutors and they talk about, you know, this kind of material going missing from an administration, they talk about, why did this happen? Did they do it on purpose? How did they react after they were contacted about it? And this is the biggest difference here is that the president's team turned over these documents immediately when they found it, they say. There is a review going on at the Justice Department, so we might get some more answers to some of the questions, like how they got there.

Trump, we know - we saw the saga that played out. He didn't turn over all the documents, according to the Justice Department. The FBI had to search his home to get those documents because they had an informant on the inside who said that there were more documents in other places and that Trump's lawyers didn't turn them all over. You know, this played out repeatedly over and over, that big saga that we saw. And you saw Trump, you know, kind of conflate these items, wants to do that politically, and said, I'm looking forward to when the FBI is going to raid Biden's houses. Well, big difference here. The FBI doesn't need to raid Biden's house because Biden's team are the ones who turned the documents in.

KHALID: I mean, despite the reaction to the discovery of these documents, I do think it is worth pointing out that, you know, classified documents being in places where they ought not to be is something of a concern for the government. And, Greg, I know you cover national security, so I want you to help us understand what some of the potential ramifications or consequences of this all could be.

MYRE: Right. I think, Asma, there's sort of two important things to think about. And the first is pretty simple and straightforward. If a document is marked classified in some way, then it's supposed to remain in a secure government facility. So it's an issue any time a classified document goes missing. National security lawyers say there always should be some sort of review or investigation, although most times it wouldn't, in fact, lead to a criminal case. And, in fact, the most common type of case, they say, is someone in the government - at the CIA, the NSA, the Pentagon - who sort of inadvertently walks out of the office with a document. It may be in a folder full of documents that are unclassified and get taken home because they can take those documents home. A person will discover this, call his or her office and say, look; I did this accidentally. I'll bring it right back. And this gets handled at the administrative level. It's no big deal.

But now the second part, of course, is a little bit more subjective. Was any damage caused - in most cases not. But is it possible that this was shared with someone who's not supposed to have access - could be just another government official. It could, potentially, in a worst case scenario, be a foreign government or, heaven forbid, the media. So this is where it becomes a judgment call on how serious the breach is or potentially could be.

KHALID: I imagine also, Greg, it has to do with the types of documents themselves, right? I mean, there's all sorts of documents that are deemed to be classified, but there's a differentiation amongst them.

MYRE: Yeah, that's right. And this is a perennial issue. The government generates millions and millions of classified documents annually. There's sort of three basic classifications, which are confidential, secret and then top secret based on how sensitive the information is judged to be. And classifying a document is just the default option for many officials, especially those in national security. You don't get punished if you classify a document, but there could be big penalties if you mishandle any sensitive information.

Now, the government has tried to deal with this periodically and declassifies more and more documents. I mean, I'll regularly go to the CIA website and find documents that are being classified more and more often. But many of them date way back to the 1960s or '70s and tend not to be very recent. And people in and out of government have been complaining about this overclassification for many, many years. But it just seems to be a permanent condition, and it creates real issues as we're seeing here. It's hard to keep track of these documents. Often, people will mishandle them unintentionally, and it can be, then, very hard to figure out - was any damage caused and, if any, how serious is it?

MONTANARO: You know, I think Greg's alluding to the point that it's not unusual for some government officials - because there are so many of these documents floating around - to inadvertently take documents out of the facility where they are or the piece of administration that they're a part of. But it really matters what they do with it when they discover it. And I think that we need to withhold judgment, really, with these Biden documents until we really learn why they were where they were or, you know, how they got there.

KHALID: All right. Well, let's take a quick break, and we'll have more to discuss in a moment.

And we're back. And, Greg, I want to dig a little deeper into something that we began to discuss in the first half of this conversation, and that is that even if these cases between Trump and Biden are different, does that matter in terms of how they could be prosecuted?

MYRE: The short answer is intent really does matter. Now, I posed a hypothetical question to Glenn Gerstell. Now, he was the general counsel - the top lawyer - at the National Security Agency for five years, so he periodically had to deal with these kinds of questions. And I asked him, suppose two government officials walked out of the office with the same classified document or the same version of a classified document - so they've both taken out the exact same material. What would the legal ramifications possibly be depending on intent? And here's what he had to say.

GLENN GERSTELL: They should be treated the same in the sense that an investigation should be undertaken to determine exactly how the document was removed and what the circumstances were, but then it quickly diverges in the case where someone refuses to hand over the document immediately as opposed to discovering it oneself and immediately returning it back to the proper authorities. And then, at that point, you potentially get into a criminal situation.

KHALID: You know, we heard there about an investigation, and it's worth reminding folks that the Department of Justice is investigating both of these cases, both, you know, the documents found under former President Donald Trump and these new documents now that were found in President Biden's former office. Where does everything stand there? I mean, I don't really have a clear sense of what the next steps are, Domenico.

MONTANARO: Well, this is also a place where they are very different investigations. I think that we shouldn't conflate those either. I mean, Biden, yesterday, said that the White House is cooperating with a Justice Department review of how these documents got where they were. He said he's fully cooperating with that. And the only reason this came to light was because CBS News was able to find out about it and reported on it. Otherwise, there was a review already going on. This isn't what spurred that review.

The difference with the former president's materials at Mar-a-Lago, former President Trump is being accused by the Justice Department essentially of obstructing their investigation. They had to search his home to be able to even retrieve these documents. A special master, at one point, was appointed to sift through the different kinds of documents. And there is a special counsel who's looking into what's happened and investigating what's going on with these documents and other things related to Trump - so far more detailed, far more potentially serious toward former President Trump and his team as opposed to what appears to be a review that's not quite as serious when it comes to President Biden.

KHALID: So there is the legal courts, as you were explaining there, Domenico, but there's also the court of public opinion. And Republicans now control the House of Representatives. They campaigned in the fall on the promise to investigate President Biden and, as they put it, the Biden crime family. You know, they intend to follow through on those campaign promises. And I'm curious how you see the discovery of these documents as potentially fuel to the fire.

MONTANARO: Well, you know, intellectual honesty is not exactly a hallmark of partisan presidential politics (laughter). And, you know, clearly - obviously - there is a degree to which oversight, responsible oversight, conducted by members of Congress is completely within the normal function of Congress. And it really just depends on the kind of context that that's put into, the kind of light that that's done with. What you're seeing with a lot of the reaction from Republicans is really over the top when it comes to this. I mean, you have some members of Congress accusing Biden of, quote-unquote, "stealing documents." And that just appears to be not the case here. But that's the kind of rhetoric we're going to hear because Republicans really see this as a gift politically because it offers Trump and them the opportunity to muddy the waters to a degree of what-about-ism, to point at Biden and say, see, this is - Biden's doing it too, and it's not a big deal and really to downplay - to give some political cover to Trump himself.

KHALID: All right. Well, on that note, let's leave it there for today. NPR national security correspondent Greg Myre, thank you so much for joining us.

MYRE: My pleasure.

KHALID: I'm Asma Khalid. I cover the White House.

MONTANARO: And I'm Domenico Montanaro, senior political editor and correspondent.

KHALID: And thank you all, as always, for listening to the NPR POLITICS PODCAST.


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