2024 Election

Is It Fair To Compare Biden’s And Trump’s Classified Documents Scandals?

A FiveThirtyEight Chat

Jan. 24, 2023, at 3:19 PM

Welcome to FiveThirtyEight’s politics chat. The transcript below has been lightly edited.

nrakich (Nathaniel Rakich, senior elections analyst): President Biden is in hot water over the discovery of classified documents from the Obama administration in his possession. In November, attorneys for the president discovered a handful of documents with classified markings on them at the Penn Biden Center in Washington, D.C., and immediately contacted the National Archives, who took back possession of the documents the next day. However, we didn’t learn this until a couple weeks ago, and since then, Biden aides have found more pages of classified material at Biden’s home in Delaware, and Attorney General Merrick Garland appointed a special counsel to look into the matter impartially. And this past week, at Biden’s invitation, the Justice Department searched Biden’s Delaware home and took away six additional items, some with classified markings. 

The story has drawn comparisons to former President Donald Trump’s possession of classified documents, which led to an FBI search of Mar-a-Lago last summer. (Editor’s note: This chat was conducted before Tuesday’s revelation that classified documents were also found at former Vice President Mike Pence’s home.) But given the important differences between the two cases, is that a fair comparison to make? Or is this just a trumped-up (pun intended) story driven by a slow news cycle? 

kaleigh (Kaleigh Rogers, technology and politics reporter): I think it’s a fair comparison. The differences in how each president responded to the revelation are certainly noteworthy, but I feel like they’ve been overemphasized a bit. At the end of the day, they both did the same wrong thing, which is keeping documents that they weren’t supposed to keep. Now, you can argue about whether the current system for determining how documents are classified even makes sense, but that argument doesn’t favor one president’s situation over the other’s.

ameliatd (Amelia Thomson-DeVeaux, senior writer): It’s a comparison that people will inevitably make because both of the cases involve special counsels, and both involve classified documents. From a legal perspective, there are a lot of important differences, including — crucially — how the documents were discovered and how Trump and Biden responded. But once the special counsel has been appointed it’s harder for people to understand that nuance.

This is generally the issue presidents run into with special counsel investigations — it’s all well and good to say you want the role to exist, but they’ve nettled most modern presidents regardless of how the investigations actually turned out. In this case, Garland really had no option but to appoint a special counsel to investigate Biden because he had just appointed one to investigate Trump. And the mere act of appointing the special counsel sends the signal that these are equally serious cases.

nrakich: I think of it this way: These are fundamentally the same genre of scandal, but the degree of seriousness is different. As Amelia alluded to, Biden and Trump have responded very differently: Biden contacted the National Archives right away and invited the Justice Department to search his home. For Trump, it was actually the National Archives that contacted him, and a grand jury had to issue a subpoena to get the documents back. And even after Trump’s team said he complied with the subpoena, it turned out he still hadn’t handed over everything, prompting the FBI’s search of Mar-a-Lago — which Trump very much did not consent to.

kaleigh: But don’t you think Biden’s reaction was, in part, an attempt to create some daylight between him and Trump since, essentially, they both did the same thing? Biden had to kind of be over-the-top with transparency and invite investigators into his home because otherwise it just looks like Biden did the same thing as Trump, which Democrats and left-wing media had just spent months saying was Really Bad. 

nrakich: Yeah, Kaleigh, I think that’s right. But I also think there are questions of intentionality that, unfortunately, we may never get a definitive answer to. There have been allegations that Trump wanted to hold onto these classified documents after he left office, as mementos almost. By contrast, I don’t think there’s much reason to think Biden’s possession of these documents was anything other than carelessness (which, to be clear, is still really bad when you’re talking about state secrets!).

Interestingly, though, Americans may not distinguish much between Biden and Trump on the intentionality point. According to a recent survey from YouGov/The Economist, Americans said that Biden took the classified documents intentionally 39 percent to 28 percent. They said the same thing about Trump 50 percent to 24 percent. Of course, a lot of respondents were (rightfully, IMO) not sure about both questions.

kaleigh: Surely the special counsel investigation will reveal all the answers, Nathaniel!

nrakich: Amelia, you said earlier that Garland’s appointment of special counsels to investigate both Trump and Biden implies that they’re parallel cases even though the legal facts are different. So do you think Garland shouldn’t have appointed a special counsel in Biden’s case?

ameliatd: I don’t mean that he should or shouldn’t have — without knowing the details, it’s hard to say. As Kaleigh said, keeping classified documents in your home (or garage) after leaving the White House is bad. My concern is that the politics of the situation will overshadow the legal outcomes because the mechanism for figuring out what happened is so similar.

kaleigh: My own point is, the parallelism was already there, and that’s why Garland had to appoint the second special counsel. It’s a bit of a self-fulfilling prophecy.

ameliatd: There’s an argument that the role of special counsels is overblown anyway. They’re empowered to investigate with a measure of independence from the Department of Justice. Now, as we saw during Robert Mueller’s investigation of Russian interference into the 2016 election, many of the rules surrounding special counsels are open to interpretation, and the attorney general can end up playing a significant role — as when former Attorney General Bill Barr wrote a misleading summary of Mueller’s report that ended up shaping the initial narrative. 

There’s also a history of special counsels overreaching and having their power curbed. In the 1980s and 1990s, independent counsels were much more independent than they are now (yes, “independent counsels” are different from special counsels — welcome to the word-soup nightmare that I lived in for several years), and Congress ended up clawing back their power. In fact, that’s how we ended up with the much more pared-down role that we have now.

Now, instead of being appointed by a court, special counsels’ credibility with the public is derived from the fact that they’re perceived as being independent from the executive branch, so their findings can be trusted. And my concern is that the more special counsel investigations happen, the less power they’ll have to do the thing they’re actually supposed to do — and the less trust there will be in the outcome — because the process has become so enmeshed with politics.

nrakich: Interesting. If you had to guess, Amelia, how do you think these special counsel investigations will end? It almost sounds like they will just release their reports and nothing will happen, no one’s minds will change — except maybe to think that the special counsel investigations were toothless from the start.

ameliatd: I’m not sure how they’ll end. It’s possible that they’ll result in charges. But from a public opinion perspective, I’m not sure it matters because people generally perceive that the two counsels are dealing with the same types of issues (the mishandling of classified documents), even though, from a legal perspective, how Trump and Biden responded actually matters a lot. 

nrakich: Well, we are a public opinion website, so let’s talk about that public opinion. Do we have any polls yet showing how Americans are thinking about Biden’s classified documents scandal vs. Trump’s?

kaleigh: Yeah, there was a YouGov/Yahoo News survey earlier this month that captured a striking dynamic, in my (non-public) opinion. When asked whether they thought Biden keeping classified documents was more serious than Trump or vice versa, 31 percent of Americans said Biden’s situation was less serious than Trump’s, 21 percent said it was more serious than Trump’s and 32 percent said the situations were equally serious. 

One thing that stood out to me was the fact that Republicans were more likely than Democrats to say Biden’s and Trump’s transgressions were equally serious. Forty-two percent of Republicans said both cases were equally serious, while 41 percent said Biden’s was more serious, but a majority of Democrats (57 percent) said Biden’s incident was less serious than Trump’s and only 24 percent said they were equivalent.

You might expect the results to be more baldly partisan with a majority of Republicans saying Biden’s case is more serious and a majority of Democrats saying Biden’s is less serious. So the fact that a plurality of Republicans said they’re equal, I think, gets to the inescapable reality here, which is that it’s really hard to say what Biden did was awful and then turn around and claim Trump did nothing wrong. 

nrakich: Yeah, the official Republican Party line on this — among elites as well as voters — seems to be, “See, Biden did it too! They are just as bad!” Whereas the Democratic position is, “What Biden did is bad, but what Trump did is worse.”

ameliatd: That’s interesting, Kaleigh. So you think it does matter how it unfolds? And if the outcome is more serious in the Trump investigation, that won’t be seen as a political outcome?

kaleigh: I wouldn’t go that far. I think the reactions to both these cases are still going to break down along partisan lines, but I think they suggest that Republicans didn’t love how Trump handled things here, and Biden’s actions after the documents were discovered were a little more palatable even if, at the root, they both started off doing the same wrong thing.

ameliatd: My cynical view is that special counsel investigations are rarely going to move the needle anyway, but now they really won’t because Biden no longer has the ability to claim the moral high ground.

The lesson: Never criticize a past president’s behavior until you are absolutely sure there are no classified documents in your garage.

nrakich: I might go that far. Maybe this isn’t cynical enough of me, but I feel like the fact that the cases are initially being handled the same way will create more credibility if their findings diverge.

As we’ve already discussed, Garland appointing a special counsel in both cases does create this initial impression that they are equivalent, which is how a plurality of Americans feel, according to both Kaleigh’s YouGov/Yahoo News poll and the YouGov/The Economist poll I cited earlier. (That said, a poll from Ipsos/ABC News found that only 30 percent of Americans viewed the two scandals equivalently, while 43 percent believed Trump’s was worse.) But after counsels finish their work, Americans may feel differently.

ameliatd: But fundamentally they’re both happening under Garland’s watch. And that’s why I think the role is flawed — it’s kind of independent, but still enmeshed enough in the executive branch that it’s pretty easy for people to mistrust or misread. 

nrakich: Yes, true.

ameliatd: And if you make the investigation truly independent, then you run into the situation we had in the 1980s and 1990s, where members of the executive branch (and the president) were constantly being investigated, and one investigation on a completely unrelated topic led to former President Bill Clinton’s impeachment.

kaleigh: I wondered how long it would take us to get to Ken Starr!

ameliatd: To be clear, I don’t think there’s an easy answer here! There are certainly situations where independence from the Department of Justice is valuable and necessary, and maybe this is one of them. But the special counsel-upon-special counsel domino effect doesn’t seem great to me. 

nrakich: We’ve been putting a lot on poor Merrick Garland (hasn’t he been through enough???) and the special counsels, but I want to make sure we acknowledge our own role here — and by “we,” I mean the media. How would you guys grade media coverage of this story for Biden, especially in comparison to media coverage of Trump? How much responsibility does the media bear for many Americans thinking Biden and Trump are equally guilty?

ameliatd: I do think Kaleigh is right that Garland had no choice but to appoint a special counsel in part because of the media coverage. 

It’s hard, though. As journalists, we want to hold powerful figures accountable, and that certainly includes the president. And Biden did spend months talking about how bad it was that Trump kept classified documents — only to have it turn out that he did (sort of) the same thing.

kaleigh: To be honest, and maybe this is indicative of the media I consume, I’ve seen an effort from the media to try to differentiate the two. You can’t listen to an NPR hit or read a New York Times story about it without getting an obligatory mention of how Biden responded differently, alerted the National Archives right away, cooperated with investigators, etc., etc.

nrakich: Yep. CBS News, which broke the original story, had a whole section in its article about that:

The Penn Biden Center case has parallels to the Justice Department’s pursuit of Donald Trump’s presidential records — but the scope and scale are materially different. In August, the FBI executed a search warrant at Mar-a-Lago that yielded hundreds of documents marked classified.

That unprecedented search followed more than a year of tussling between Trump’s representatives, the National Archives, and the Justice Department. The search warrant was sought and executed in August after multiple failed attempts by the federal government to retrieve what it considered to be sensitive documents at the former president’s personal residence that should have been turned over to Archives under law.

And the Associated Press, CNN and Washington Post have all done articles specifically comparing the two cases side by side.

kaleigh: I mean, look. That is part of the story, so this is partly due diligence. It would be negligent to not even mention that aspect. But at some point, it feels like a RIGBY situation, where there’s this obligation to caveat any coverage lest it comes across as equating the two in any way. 

nrakich: When you look at volume, though, cable news at least has been covering Biden’s story more. According to closed-captioning data from the Internet Archive’s Television News Archive, the three major cable news networks (CNN, Fox News and MSNBC) mentioned the word “classified” in an average of 357 15-second clips per day in the two weeks following the FBI’s search of Mar-a-Lago (Aug. 8-21, 2022). Meanwhile, the networks mentioned the same word in an average of 478 15-second clips per day in the two weeks after Biden’s own classified documents story broke (Jan. 9-22, 2023).

But the coverage gap is due to one channel in particular. CNN has covered the stories the most equally, with an average of 136 mentions per day over the August 2022 time period (Trump) and 154 this month (Biden). MSNBC covered Trump’s case a little more than it has covered Biden’s, with an average 153 mentions of “classified” per day in the August timeframe and 125 in the January one. But Fox News has covered Biden’s scandal way more than it covered Trump’s, mentioning “classified” an average of 199 times per day during the January time period but only 68 times per day during the August one.

kaleigh: Right, and it’s not shocking that MSNBC covered Trump’s documents more than it’s covering Biden’s documents and Fox covered Biden’s documents more than it covered Trump’s documents. What’s interesting to me is that in both cases there was kind of a frenzy right away, but it has tapered off at about the same rate.

ameliatd: I also wonder how much coverage the Biden story would be getting if we weren't in a slow news cycle...

kaleigh: And if Trump hadn’t just done the same thing, basically. The Democrats could wave this off as a nothingburger a lot more easily if they hadn’t just been dragging Trump for doing the same thing.

nrakich: Yeah, I think the slow news cycle is a big part of it. I'll get a little meta here and talk about how we’ve covered these scandals here at FiveThirtyEight: This is the third piece of content we have published about Biden's classified documents, but we only published two about Trump's. But it's not because we think Biden's case is more serious than Trump's; it's because last August was a much busier time for political news. If we had had unlimited resources, I think we would have written more about Trump’s predicament, but that was the thick of midterm-election season, and we had so much else to cover that we just didn't get to it.

Biden’s story has also come out in dribs and drabs — the first documents were found at the Penn Biden Center, and then a few more were found at Biden's home, and then a few more were found there, etc. I think that has given it a little more life than it otherwise would have. But I’m curious to see if it has staying power in the media’s and public’s minds even after new revelations stop coming to light.

kaleigh: That will partly depend on whether anything more newsworthy happens … or if the most exciting debate is still about kitchen appliances.