Chicago Criminal Defense Lawyers explain the differences between the Trump and Biden classified document cases. There have been a lot of questions raised as to why former President Trump was criminally charged in connection with his retention of classified documents, while President Biden will not be charged.
By way of quick background, former President Trump has been charged with several Federal criminal offenses, in a prosecution that is still pending – and unlikely to go to trial in 2024 – in Federal Court in Florida. The key distinctions are as follows. In the Trump matter, the Government attempted to negotiate with Trump and his legal team for a significant period of time for the return of the classified documents. Moreover, as an initial matter, the Government repeatedly sought an acknowledgment from Trump and his legal team that such classified documents had been retained and were still in the possession of Trump. Those extensive efforts ultimately proved futile, including after representations were made that no such documents remained in the former President’s possession and control. It appears clear that, had Trump and his team acknowledged and returned the classified documents, Trump would never have been criminally charged.
However, that is of course not what happened. The Government was able to gather evidence supporting the fact that Trump in fact possessed relevant and responsive documents. That, in turn, provided the basis for the request for, and issuance of, a search warrant. That search ultimately turned up a trove of classified documents, including in unsecured areas. Moreover, the Government’s investigation further revealed that, according to at least one cooperating witness, Trump himself had engaged in a cover-up with respect to the documents at issue. Accordingly, although federal prosecutors certainly could have chosen not to prosecute the former President, Trump essentially gave them the basis for charges, including by way of the alleged cover-up activities. Clearly, Trump would have been far better served by competent and aggressive lawyers who were willing to conduct their own legitimate review of Trump’s documents, and then to negotiate the turnover of such materials – perhaps coupled with a pitch for immunity in connection with their return. Unfortunately, none of that appears to have happened.
Conversely, Biden and his legal team wisely did not follow the Trump playbook. Instead, they let the Government, almost immediately, search for and take all of Biden’s classified documents. That was a smart move. That openness undermined any attempt to argue that Biden had likewise covered up his activities. That approach also bolstered Biden’s contention that he did not know about, or at least did not willfully possess, those classified materials.
In addition, Biden agreed to answer investigators’ questions for a lengthy period of time. That is often ill-advised, but it paid off in this instance. Biden was able to credibly deny (or at least not remember) facts that could have supported the bringing of Federal charges against him. Indeed, the investigators were clearly sizing up Biden’s potential as a witness-Defendant during their interviews of him. Based upon the Report that was just regarding that Biden investigation, the conclusion was reached that Biden would make a good and sympathetic witness.
Biden may have taken a political hit from the Report of the investigation, in terms of derogatory comments made therein about his memory and mental faculties, but he was able to avoid criminal prosecution. For a politician and President, one can still argue that Biden’s cooperation was a political mistake, albeit one that saved him from the on-going specter of a Federal criminal proceeding during an election year. That said, the Report helps Biden to argue that his conduct was different than Trumps with respect to the handling of classified documents. Whether anyone cares is a whole different question.
Michael Leonard
Matthew Chivari
Leonard Trial Lawyers
February 9, 2024