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Asha Rangappa: Donald Trump is 'protected' by the secrecy of a criminal investigation in a way Biden is not. Here's why.
While Biden’s actions may not be a crime, they still present significant national security concerns. But while Biden’s actions may not be a crime, they still present significant national security concerns.
More importantly, the new discoveries have given House GOP more fodder for yet another congressional oversight investigation, which will shine a bigger spotlight on Biden’s actions than on Trump’s. Biden may not have a legal problem, but he does have a perception problem. It’s worth reiterating at the outset the legal distinctions between Biden’s and Trump’s possession of classified documents. The difference is one of intent. Even if we assume that both presidents ended up with classified documents at their homes inadvertently, Biden immediately notified and cooperated with the Justice Department after discovering them while Trump stalled, evaded and made misrepresentations in his dealings with law enforcement. Biden even consented to a search of his home by the FBI. By contrast, the FBI was arguably left with no choice but to obtain a search warrant for Mar-a-Lago after learning that classified documents remained on the premises despite Trumps lawyers warranting to the FBI that they had been returned.These differences matter from a legal perspective. In Trump’s case, his refusal to turn over classified documents despite repeated requests by the Justice Department triggers a section of thethat makes it a crime to “willfully retain” national defense information after being asked to return it. His apparent concealment of additional documents following the subpoena, which necessitated the search warrant, triggered the obstruction of justice statute. Biden’s actions, on the other hand, could arguably fall under a section of the Espionage Act that criminalizes “gross negligence” in the handling of national defense information — the same provision under whichwas investigated. But even “gross negligence” requires a greater degree of intentionality than Biden has demonstrated, making it unlikely that he could be prosecuted under that statute. Unfortunately, these nuances are less relevant when we take the law out of the picture. The fact remains, according to reports, that Biden had classified items, including documents marked Top Secret — meaning that their disclosure could gravely damage national security — in several unauthorized locations, including his home and garage. In the most recent search of his home, to which Biden consented, the FBI discovered, including one that went back to his time as a senator. The presence of these documents, in so many different locations and over such a long period of time, is difficult to justify and presents serious national security concerns, regardless of whether they constitute a crime. Enter the House GOP investigation. House Oversight Committee Chairman James Comer, R-Ky., has already requested visitor log information for two locations where documents were found, the
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