When his predecessor Donald Trump’s home in Mar-a-Lago, Florida, was raided last August and a trove of thousands of government documents was discovered there, including several hundreds of classified papers, little would U.S. President Joe Biden have imagined that he would find himself in a similar sticky situation. Yet, Mr. Biden and the White House have so far reacted calmly to the discovery of classified documents by his own attorneys at several sites including the Penn Biden Center for Diplomacy and Global Engagement, a think tank in Washington, and in the garage and several other rooms of his home in Wilmington, Delaware. There are, of course, critical differences between the cases, which will probably be mirrored in varying legal consequences of each of the two classified leaks. First, the Trump stash is reported to be over 11,000, including about 300 marked classified or top secret, and includes photographs, whereas the papers associated with Mr. Biden are reportedly fewer than 12. Second, after Mr. Biden’s lawyers first discovered classified files in a locked closet at the think tank, his team voluntarily notified the National Archives and the Justice Department and are ‘cooperating with the investigation’ fully. In Mr. Trump’s case, after the U.S. National Archives found classified records to be missing and requested that Mr. Trump return them, he failed to comply and hence the matter was handed over to the FBI. Third, while both leaks are being investigated separately, the Justice Department is conducting a criminal inquiry into Mr. Trump’s handling of the documents, but in Mr. Biden’s case there is no indication of wilful intent so far and he is protected by a rule that a sitting President cannot be indicted.
Notwithstanding these facts, it is clear that Mr. Biden’s — or his team’s — improper handling of classified material will cost him politically. Already, polls have found that his job approval rating, which enjoyed a bump towards the end of last year, has slumped back to around 40% — the all-time low of his presidency. The President is also facing difficult questions on why, after the initial discovery of the classified papers on November 2, his team suppressed that information until well after the November 8 midterm elections. Similarly, Republicans led by House of Representatives Speaker Kevin McCarthy have called for a Congressional investigation into the Biden classified leaks. The backlash could well be a setback for the case to prosecute Mr. Trump for violating the Espionage Act, even though he appears to have wilfully taken the classified documents from their proper place of holding and then possibly obstructed justice when asked to return them.