While much of the speculation about potential criminal charges regarding presidential classified documents found outside of the National Archives has focused on Donald Trump, President Joe Biden has his own instances of holding on to secret papers.
Biden has maintained that the retention of the documents was accidental, that he was not aware of their possession, and that he has cooperated with authorities to return them.
So, will Biden get in legal jeopardy from the investigation that is being conducted by Department of Justice special counsel Robert Hur?
What Did Joe Biden Do?
Biden’s classified documents situation has developed slowly. It started on Nov. 2, 2022, when “a small number of documents with classified markings” were found at the Penn Biden Center for Diplomacy and Global Engagement think tank in a locked closet in Washington, DC. Biden’s attorneys said they had been cleaning up the office when they found the material.
Richard Sauber, one of the president’s lawyers, then admitted on January 12 that a low number of classified documents was discovered in the garage of one of Biden’s residences in Wilmington, Delaware. One other secret document was found in his library at the home.
Biden’s attorneys said they returned these to the National Archives.
Then on Jan. 20, the FBI searched the home and found six other secret papers. The FBI also seized some of Biden’s notes that he hand-wrote, according to Bob Bauer, another lawyer for the president.
Special Counsel Looks Into Matter
Hur was assigned by the DOJ to investigate whether there was “possible unauthorized removal and retention of classified documents or other records.”
Like the Trump investigation, Hur will probe whether there was a willful violation of the Espionage Act or the Presidential Records Act. Biden and his lawyers believe that the retained classified documents were the result of an accidental oversight, the president had no intention to break the law, and he cooperated fully with investigators to return the documents.
There is another law regarding government documents that could place the president in legal jeopardy. 18 U.S. Code § 2071 regarding “Concealment, removal or mutilation generally” could come into play.
At least one conservative commentator, Benny Johnson, believes that willful violation of this law could bar Biden from office and disqualify him from holding future office. This could also result in jail time of up to three years.
The code says, “Whoever having the custody of such record – that being a classified record – proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys…”
Biden has not completely appeared to willfully and illegally conceal or remove the documents or to have destroyed them. At most, his lawyers would say, he was unintentionally negligent, and when the documents were found they were returned to the National Archives. The president allowed the FBI to have unfettered access to search his home.
Legal scholars have said that 18 U.S. Code § 2071 is not applicable to sitting presidents. Even in the low probability event that Biden would be subject to and even convicted of the statute, he is unlikely to be charged beyond a misdemeanor. He would receive no jail time, nor would he be removed from office or barred from holding future office.
A court would probably point toward the legislative branch as the only entity that could remove Biden from office, doing so through an impeachment proceeding. This could happen, since Republicans control the House of Representatives, but there would not be enough Republican votes in the Senate to convict the president even if he were impeached.
The U.S. House Oversight Committee is looking at the case, but they haven’t found any smoking guns so far. A Biden staffer told the committee in early May that she did not notice any classified documents in the trove of papers and other material that she packed after he left the vice presidency. It appears that Biden and his employees did not know about the secret papers he had in his possession.
Pence Is in the Clear
No charges are forthcoming against former Vice President Mike Pence for classified documents that were found at his home. The DOJ ended its investigation against Pence in June. During a search, one of Pence’s attorneys found 12 classified documents. Pence said he quickly turned over the materials to the Department of Justice and he allowed the FBI to conduct its own search.
Thus, Joe Biden is not likely to be prosecuted. There does not appear to be any criminal intent. There were not many classified documents found. It appears to be accidental, and at worst negligent. He also returned the documents to the National Archives and cooperated with the FBI. He did not obstruct the investigation. The most it could hurt Biden is in the court of public opinion. He lacks the moral high ground when it comes to comparing his actions of holding secret papers to what Donald Trump has done with his own classified documents.
As one former Obama Administration National Security Council Member told 19FortyFive: “This supposed scandal is a nothing burger. Joe Biden is not getting charged with anything.” He might be right.
Author Expertise and Experience
Serving as 19FortyFive’s Defense and National Security Editor, Dr. Brent M. Eastwood is the author of Humans, Machines, and Data: Future Trends in Warfare. He is an Emerging Threats expert and former U.S. Army Infantry officer. You can follow him on Twitter @BMEastwood. He holds a Ph.D. in Political Science and Foreign Policy/ International Relations.
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