On August 8, 2022, the FBI raided President Donald Trump’s Mar-a-Lago residence in Palm Beach, Florida, sparking a chain reaction of similar investigations into the whereabouts of classified documents in the hands of elected officials. In the following weeks, political commentators analyzed the merits of keeping classified documents within a private residence, resulting in a myriad of conclusions split along ideological lines. Months later, a series of searches at properties owned by President Joe Biden and former Vice President Mike Pence reignited the debate, leading many to question whether a consistent investigatory standard was applied.
To Republicans like Senator Rick Scott and Speaker of the House Kevin McCarthy, the FBI’s raid on Mar-a-Lago represented a major shift in conduct for the Department of Justice (DOJ) from an agency of integrity to an institution in an “intolerable state of weaponized politicization.” In their eyes, the raid displayed an internal desire within the bureaucracy to tarnish the former president’s political credibility and influence, mirroring the previous investigations by the DOJ into his role on January 6, Russian election interference, and the 2020 Georgia elections. While the merits and conclusions of these probes are still heavily contested, there is some credence to the notion that members of the DOJ acted with undue haste. Though some members of the FBI aggressively pursued action against the former president, other branches of the Bureau, such as the Washington field office, seemingly urged caution due to the highly sensitive national security and political implications associated with the investigation. Many Republicans have pointed to the Hillary Clinton email scandal as an example of the DOJ employing a double standard using less intrusive means to recover evidence. However, a court filing in August of 2022 revealed that Trump still possessed classified documents, failing to comply with a May 2022 subpoena that requested all remaining classified documents at Mar-a-Lago be turned over to the authorities.
Conversely, prominent Democrats like Representatives Nancy Pelosi, Adam Schiff, and Pramila Jayapal seemingly praised the FBI for holding the former president accountable through our normative system of checks and balances. In the days and weeks following the raid, President Biden and officials in his administration refused to comment on the search, seemingly to prevent any speculation that his administration facilitated the probe to further a political motive. Although the question of whether President Biden weaponized the DOJ against a political adversary is vital to the integrity of our intelligence institutions, a more procedural concern revolves around the evidence or cause that the FBI found substantial enough to necessitate a search of the former president’s private residence. Luckily, two scenarios within the past seven years provide excellent test cases to determine whether a standard exists and if prosecutors applied it evenly.
The first and most widely publicized case is the Hillary Clinton email scandal. In 2014, the House Select Committee on Benghazi requested all of Hillary Clinton’s State Department emails. A problem arose soon after the department realized that many of Clinton’s emails, about 30,000 in total, were housed on a private server. Thus, a political firestorm began as former Secretary Clinton and her legal team vigorously searched through email archives and eventually came up with roughly 30,000 work-related emails that were then sent to the State Department. The critical error on Clinton’s part was that she openly stated that her server did not contain any classified emails, but an FBI investigation later revealed this statement to be somewhat inaccurate. Then FBI Director James Comey elaborated on how only 113 of the 30,000 emails were viewed as containing classified information, and only three had an explicit marking indicating the material was classified. Thus, the FBI concluded, this lapse in judgment by Clinton and her team appeared to be a result of carelessness rather than some elaborate attempt to sidestep the law.
More recently, the DOJ conducted multiple searches of properties owned by President Biden in late 2022 and early 2023, revealing numerous classified documents in the process. Both the Penn Biden Center and the president’s private residence in Wilmington, Delaware housed numerous documents with classified markings from the president’s time as Senator and Vice President. The president and his team appear to be complying with the investigation by the DOJ, evidenced by the special counsel to the president Richard Sauber speculating that the probe will most likely reveal that the documents were inadvertently misplaced. For Democrats who lauded the Mar-a-Lago search, the current investigation into President Biden will serve as a flexion point to determine whether they truly desire an equal standard of justice or a minor political victory.
After a thorough analysis of the available evidence on the Trump, Biden, and Clinton document scandals, it appears that the DOJ is applying an even standard. Specifically for the Trump and Clinton cases, federal prosecutors contemplated section 793(e) of U.S. code 18, a federal statute covering the mishandling of documents and information relating to national defense. Although the jury is still out as to whether the same statute will be applied to President Biden, the fact is that no explicit double standard exists between the Clinton and Trump cases. Additionally, the rather extreme nature of the raid of Mar-a-Lago resulted from former President Trump’s unwillingness to comply with federal authorities, contrasting with the relative openness of the Biden and Clinton teams. The only real possibility for a legal discrepancy involves the Presidential Records Act of 1978 which shifted the records of presidents and vice presidents into the public domain through the National Archives. However, such unequal treatment would only exist if the DOJ found a similar degree of obstruction with President Biden’s documents from his term as vice president as they did in 2018 when Trump was discovered to be tearing up documents, breaching the aforementioned statute. Thus, the DOJ seems to be acting per federal statutes, although there is still a possibility that former FBI Director Comey’s standard of carelessness may not be applied as favorably to former President Trump. On a more pessimistic note, if evidence reveals the Biden administration actively pressured the DOJ into raiding the former president’s private residence for purely political reasons, then there is a much larger issue afoot than any national security concerns stemming from poorly handled classified documents.
Sherman Criner is from Wilmington, NC, studying Political Science and Public Policy