Among the 37 felony counts former President Donald Trump faces in federal court, 31 of them are for his alleged mishandling of classified documents. The charges filed last week indicate Trump possessed these documents at his Mar-a-Lago resort after leaving office.
Trump has not denied possessing the documents but has claimed he is being unfairly singled out.
In recent months, Joe Biden and Mike Pence both revealed possessing classified documents after leaving the vice presidency. Neither Pence nor Biden have been charged for having the documents.
Both Pence and Biden said they handed over the documents as soon as they were discovered.
Trump and allies have also noted that Hillary Clinton was not charged for having thousands of emails stored on a private server.
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What makes the cases similar
Pence, Biden and Trump all apparently left federal office with classified documents. The documents were among other records kept by them after leaving office.
In testimony to Congress, National Archives Chief Operating Officer William Bosanko said that every administration since President Ronald Reagan has mishandled classified documents when leaving office.
President Biden reported in January that classified documents were found at his former offices at the Penn Biden Center. He then reportedly asked the FBI to review documents at his home, which turned up more classified documents that were improperly stored.
Pence asked for outside counsel to review his documents after Biden revealed he possessed classified documents. Pence's attorney wrote to the National Archives that "a small number of documents bearing classified markings that were inadvertently boxed and transported" were transported to his residence.
For both Biden and Pence, the indication is that they self-reported having the documents. In the case of Trump, it appears he was first notified that documents were missing.
What makes the cases different
Unlike in the Biden and Pence cases, Trump was notified that presidential records, like a letter addressed to Trump from North Korean President Kim Jong-un, were missing. The National Archives and Records Administration said it requested documents pursuant to the Presidential Records Act in May 2021. The DOJ said that the National Archives made "repeated" requests for records from May through December 2021.
In an affidavit released by the Department of Justice, the National Archives and Records Administration notified the DOJ in February 2022 that it received 15 boxes of documents from the Trump administration, some containing classified documents.
After reviewing the documents, it was concluded that more documents were likely remaining at his Mar-a-Lago residence. In August 2022, federal authorities conducted a search warrantand found additional classified documents, the DOJ said.
In Clinton's case, the documents were not physical but stored on a hard drive.
"Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case," James Comey, then FBI director, said. "Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person's actions, and how similar situations have been handled in the past."
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Expert says wilfulness is what got Trump charged
According to Joshua Dressler, a criminal law professor at the Ohio State University, the fact that Trump didn't immediately hand over classified documents was what got him charged.
"What makes it a crime is if while I'm in unauthorized possession of the document, I willfully retain it and fail to deliver it to the proper person," he said. "The term willfully is the crucial word. It's what lawyers call the mens rea word, the mental state word in the statute, that is crucial to the case and which distinguishes Pence or Biden or Clinton from the Trump situation."
While getting an indictment means legally, Trump likely committed a crime, getting a conviction would mean Trump is guilty beyond a reasonable doubt. Proving that Trump willfully mishandled classified documents could be a challenge, according to Dressler.
"It always is a challenge because, with all crimes, you have to prove not just the physical aspect of the crime but the mental aspects, and getting into the head of a defendant is not easy unless they say something or do something that makes it obvious," he said.
The statute Trump is chargedwith mentions willfulness.
But as attorney Katie Cherkasky noted to Scripps News' "Morning Rush," Trump is facing additional charges of obstruction. She said that obstruction and unlawful record retention are two separate issues.
"The distinction is that the offenses in retaining those documents actually occur at the time that they are mishandled or misappropriated," she said. "It's irrelevant if you would later return those because the crime has already been committed after that fact. So the timing of the retention is really important. The obstruction is a completely different analysis altogether, but the retention offenses are not necessarily dependent on that."
She added, "The actual crime that occurs is when it is taken without authorization."
In the case of Biden, Attorney General Merrick Garland appointed an independent special counsel to investigate Biden's handling of classified documents. That investigation is still ongoing, meaning criminal charges have not been completely ruled out.
