Why Trump’s being charged over classified papers and Biden is not

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Special Counsel Robert Hur released his report saying that he would not recommend criminal charges against President Joe Biden despite the fact that he said that Mr Biden “wilfully” held onto classified materials from his time as vice president.

The report found that materials Mr Biden retained from his time as Barack Obama’s vice president included “marked classified documents about military and foreign policy in Afghanistan, and notebooks containing Mr Biden’s handwritten entries about issues of national security and foreign policy implicating sensitive intelligence sources and methods.”

The decision stands in stark contrast to the decision by a grand jury to indict former president Donald Trump for keeping documents at Mar-a-Lago. Inevitably, the former president and his allies crowed about how a grand jury supposedly unfairly indicted the former president for his storage of classified documents related to national defence but not his successor.

“THIS HAS NOW PROVEN TO BE A TWO-TIERED SYSTEM OF JUSTICE AND UNCONSTITUTIONAL SELECTIVE PROSECUTION!,” Mr Trump said in a statement after the release of Mr Hur’s report. “The Biden Documents Case is 100 times different and more severe than mine.”

But in his report, Mr Hur made a key distinction between Mr Biden’s case and Mr Trump’s. In the report, Mr Hur said that historically, former presidents and vice presidents had knowingly taken sensitive materials related to national security on several occasions.

“This historical record is important context for judging whether and why to charge a former vice president and former president, as Mr. Biden would be when susceptible to prosecution-for similar actions taken by several of his predecessors,” the report read. “With one exception, there is no record of the Department of Justice prosecuting a former president or vice president for mishandling classified documents from his own administration.”

Mr Hur said that Mr Trump proved to be the exception to the rule. While Mr Hur wrote his job was not to assess the charges against the former president, he did say Mr Trump had broken precedent.

“Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite,” the report reads. “According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it.”

By contrast, the report noted that Mr Biden turned in classified documents to the National Archives and the Department of Justice, agreed to have multiple locations searched and sat down for a voluntary interview for the investigation.

Mr Hur cited several “mitigating” factors in his decision not to recommend charges against Mr Biden even if the Department of Justice did not have a precedent against indicting a sitting president.