Joe Biden's Classified Documents Batches—What We Do Know, What We Don't

President Joe Biden is facing fierce scrutiny over allegations he may have misplaced or mishandled multiple classified documents while he was vice president, with new and confirmed reports that he kept papers in his garage.

The president, who has been critical of Donald Trump for holding on to classified documents at his Mar-a-Lago home in Florida, admitted Thursday to storing documents in his "home and personal library."

This came a few days after news broke about 10 classified documents that were discovered on November 2, just before the midterms, at the Penn Biden Center for Diplomacy and Global Engagement, the president's University of Pennsylvania think tank," according to CNN. Some of the documents were marked "top secret."

The recent revelations have created a discomfiting controversy for the Biden administration. On Thursday, U.S. Attorney Merrick Garland announced that a special counsel will investigate the president's handling of the documents.

The news has incensed conservatives and right-leaning commentators, who have condemned what they say is the relatively muted response by authorities, compared with the FBI's raid on Mar-a-Lago last August, when hundreds of documents were seized.

On Truth Social, his social media platform, Trump said, "When is the FBI going to raid the many homes of Joe Biden, perhaps even the White House? These documents were definitely not declassified," following a report on the discovery of the documents.

On Thursday, Fox News host Sean Hannity called for all of Biden's properties to be raided.

Five months after the raid in Florida, some commentators are drawing direct comparisons between the two situations, in some cases putting aside certain unique circumstances of the Mar-a-Lago search.

With calls for searches of more of the president's properties in the manner of the Mar-a-Lago raid, Newsweek's Fact Check team looked at the timeline of both cases and reached out to former federal prosecutors and legal experts to assess the facts—and the speculative elements—in the controversies.

What We Know So Far

One difference with the Mar-a-Lago raid is the relative paucity of information or details in the Biden case, with only a "small number" of classified documents reportedly taken.

Fewer than a dozen were said to have been found at Biden's office, CNN reported, including some top-secret files with the "sensitive compartmented information" label, or SCI. These types of documents were also found at Trump's home in Florida.

The first set of classified documents was discovered in November 2022 by Biden's lawyers, who promptly informed the National Archives and Records Administration, making any action by the FBI unnecessary, at least for the time being.

The president has since told reporters that he was "surprised" by the discovery.

Nonetheless, the White House said Monday that the Department of Justice (DOJ) was reviewing "a small number of documents with classified markings" found at the Penn Biden Center by the president's personal attorneys.

Richard Sauber, special counsel to the president, said that since the documents were found, the president's "personal attorneys have cooperated with the Archives and the Department of Justice in a process to ensure that any Obama-Biden Administration records are appropriately in the possession of the Archives."

Shortly after that, Garland appointed John Lausch, U.S. attorney for the Northern District of Illinois—one of the few U.S. attorneys held over from Trump's administration—to conduct a review of what happened.

Lausch subsequently advised Garland that a special counsel was warranted, which was followed by this week's appointment of Robert Hur, the U.S. attorney for the Northern District of Maryland.

The discovery of a second set of documents was first reported by NBC News, later confirmed by the White House to The New York Times and in a public statement. The documents were said to have been found in a storage space in the garage at Biden's home in Wilmington, Delaware. Lausch was informed of this discovery by Biden's personal counsel on December 20, 2022, and the FBI quickly secured the documents, according to NPR.

The Times said the statement from the White House did not provide details about the documents, when they were found, who packed them and whether anyone had access to them.

Following a Thursday press conference, Biden said the second batch of papers was "locked" away, having been discovered after the first batch was found in November.

"People know I take classified documents and classified materials seriously. I also said we are cooperating fully and completely with the Justice Department's review," Biden said.

He went on: "As part of that process, my lawyers reviewed other places where documents from my time as vice president were stored, and they finished the review last night. They discovered a small number of documents with classified markings in storage areas, file cabinets in my home and my personal library.

"As was done in the case of the Biden Penn Center, the Department of Justice was immediately notified and the lawyers arranged for the Department of Justice to take possession of the documents," the president said.

A federal inspection of properties owned or used by Biden, although apparently not in the cards at the moment, could still happen.

Still, given how little we know about the documents reported to the National Archives and the new discovery, there is too little information to assess whether a raid or search, similar to that at Mar-a-Lago, is warranted.

Robert Fisher, a partner at law firm Nixon Peabody with about 16 years of experience in federal and state prosecution, told Newsweek that while the details are being figured out, the matter is still a "bad look" for those involved.

"I think we need some more information on this one, but anytime you have classified materials handled inappropriately, it is a problem," he said. "I can tell you that when I was at the U.S. attorney's office I would have had a serious issue if I brought classified materials to my home office, even accidentally."

However, the swift and—significantly—voluntary return of these documents to the National Archives after their discovery marks a crucial difference when compared with the events before the Mar-a-Lago raid.

How What Happened at Mar-a-Lago Differs

In January 2022, the National Archives said it had received some of Trump's presidential records, although some had been "torn up" by the former president.

In February, the National Archives confirmed receipt of 15 boxes of presidential records previously located at Mar-a-Lago.

An affidavit disclosed that when FBI agents reviewed the contents of those 15 boxes, they found 184 documents with classification markings, with 67 marked as confidential, 92 marked as secret and 25 marked as top secret.

Newsweek reported that this investigation led to a grand jury subpoena in late May to produce specific documents.

FBI agents and a senior Justice Department visited Mar-a-Lago in June. According to people familiar with the investigation, they collected a "small number" of documents classified as top secret and "compartmented." Nonetheless, two months after that visit, Mar-a-Lago was raided by federal agents. The FBI took 20 boxes of items, which included further top secret and sensitive compartmentalized information."

Photos of documents taken from Mar-a-Lago showed papers scattered across the floor, and they were included in a 36-page court filing released by the DOJ in late August 2022.

Newsweek's Fact Check team previously assessed the classification coding of these papers, which revealed that their contents could be linked to information that could put a human intelligence source at risk if handled improperly and/or contain information received through communication monitoring or spy satellites.

As of yet, we don't know whether the papers found at the Penn Biden Center office or Biden's home may have the same, lower or higher level of confidential classification.

However, the key difference here is that, rather than facing two searches, a grand jury subpoena and accusations about destroying documents, the Biden team promptly handed over documents to the National Archives upon their discovery.

The recent news has also brought to the fore other misconceptions about the Mar-a-Lago investigation. One claim that Trump and his supporters made after the Florida raid was that he had the power to declassify the documents found at his home.

Trump went so far as to say that he could declassify documents just by thinking about it. Now, in the wake of the Biden document story, those claims have reemerged, along with allegations of bias in how the matters have been handled.

As Newsweek has reported, the DOJ has said in a court filing that on previous occasions where other information was collected from Mar-a-Lago, "the former President never asserted executive privilege over any of the documents nor claimed that any of the documents in the boxes containing classification markings had been declassified."

Even if Trump had declassified these documents, it would have to be done under the proper declassification protocol, according to Executive Order 13526 - Classified National Security Information. This would require the approval of "the official who authorized the original classification...the originator's current successor in function...a supervisory official of either the originator or his or her successor..." or "officials delegated declassification authority in writing by the agency head or the senior agency official of the originating agency."

Trump, at the very least, needed to have the authority to declassify documents, with approval by the government agency that originally classified those files.

Even then, knowing what we know now about the sensitivity of their contents, doing so could have serious repercussions for the U.S. intelligence community.

Trump Raid 'Dramatically More Aggravated'

One underlying question is how the classified documents found at the Penn Biden Center and elsewhere got lost in the first place, let alone how potentially top-secret classified documents became intermingled with other classified material and were left in a storage cupboard after Biden was vice president.

An answer may emerge from the special counsel's investigation, but so far neither Biden nor the White House has offered a full explanation.

Nonetheless, if we are to rely on the information that has been released, the situation, for now, still appears less fraught than the one facing Trump.

Mark Osler, a former federal prosecutor and criminal law professor at the University of St. Thomas in St. Paul, Minnesota, said, "What matters is state of mind."

He continued: "Were the docs taken intentionally and did they know they were classified? Getting documents mixed up among others [is] common in a variety of contexts."

What About the Midterms?

There are also questions about how long it took for the Biden document discovery to become public knowledge, given that the National Archives was notified only a few days before the November midterm elections.

Some, including former CIA and National Security Agency analyst Edward Snowden, have speculated, based on the reported timeline, that the discovery could have influenced the midterms if the public had known about it by then.

Whether the story would have made a difference or affected the election results is just speculation. The DOJ may have been hamstrung by protocol meant to delay investigations around election season. The so-called 60-day rule, while not written law, is intended to delay any actions that could affect voting.

The FBI faced considerable criticism for announcements it made regarding the Hilary Clinton private email scandal in the run-up to the 2016 presidential election.

Newsweek has contacted the DOJ to ask whether the midterms motivated any decision on announcing an investigation into Biden's possession of classified documents.

While there were tight margins in battleground states like Georgia, Arizona and Colorado, the voting was for congressional races, not the presidency.

In fact, Biden took something of a backseat role throughout the campaigns leading up to November's voting. At the time, Biden's approval ratings were low, and Pew Research Center polling showed that the top six priorities for voters were the economy, the future of democracy, education, health care, energy and violent crime.

Notably, Trump claimed that the FBI raid sent his popularity "through the roof," but as Newsweek reported at the time, the polling picture was more mixed.

The FBI raid in Florida was precipitated by months of protracted discussions between legal authorities and the DOJ, which ultimately decided it would be easier to take control of the documents than continue negotiations.

Biden could have faced the same outcome had he and his team handled the president's documents situation in a similar manner.

Why Were the Documents There?

Nonetheless, there are questions about why it took so long for the Biden case to become public.

Biden's situation appears—at least at this stage—to be less of a legal problem for him, compared with Trump. Still, the central fact is that Biden's classified documents were found in what appears to be a nonclassified environment.

Gene Rossi, a former federal prosecutor, said questions remain about how the Biden documents were handled. He said the president should be examined with the same scrutiny that Trump has faced, where appropriate.

"If you are a purist, the way Mr. Trump handled the documents—and what appears, allegedly, the way that Mr. Biden has handled the documents—they did not handle them in the proper way," Rossi said. "And the issue is: For criminal purposes, what was the level of intent on the part of Mr. Trump and on the part of Mr. Biden?"

Rossi continued: "It always goes to intent. And I have to say it again: They should follow the facts where they lead without fear or favor. And if we're going to look at President Trump and analyze his situation, which we should, then we should fairly and justly analyze President Biden's situation. Nobody is above the law."

Newsweek has contacted Trump and the University of Pennsylvania for comment.