The latest news from the Biden administration has left many perplexed about the legal threats being wielded in both Biden and former President Donald Trump’s directions and raised questions about whether one indictment should trigger the other.
August’s bombshell FBI raid at Mar-a-Lago had drawn widespread criticism of Trump, and now that Biden is in the hot seat, his team is making every effort to distinguish the differences between the two cases. Although there are significantly fewer documents in Biden’s case, and despite the fact that his attorneys were proactive in turning over the records, experts told Newsweek Biden may still have broken the law.
“It’s a crime to take classified documents,” Neama Rahmani, former federal prosecutor and president of West Coast Trial Lawyers, told Newsweek. “President Biden may have violated the Presidential Records Act, Espionage Act, and other federal laws.”
However, while the Espionage Act criminalizes the act of gathering, transmitting or losing national defense information, the DOJ only prosecutes “when an aggravating factor is present,” Norman Eisen, attorney and senior fellow at the Brookings Institute, told Newsweek.
This is why experts say it remains too early to know if Biden’s possession of the documents in question constitutes a violation of the law.
Ultimately, it will ultimately depend on whether the records were appropriately in Biden’s possession at one time and whether he even knew they were in that locked storage at his former office, former federal prosecutor and elected state attorney Michael McAuliffe told Newsweek.
“The key is whether Biden knowingly and intentionally kept them,” Esien said.
In order to determine such, he said the Justice Department will need to conduct a thorough review and investigation. Attorney General Merrick Garland has already appointed U.S. Attorney for the Northern District of Illinois John Lausch to conduct the review.
Eisen said that thus far, there hasn’t been any indication that Biden held onto those documents on purpose, which, for now, would strike out the aggravating factor required for a prosecution.
The attorney added that prosecutors wouldn’t have probable cause in Biden’s case because there was no search warrant as there was in Trump’s case.
However, “All that being said, we’ll see how the situation evolves,” Eisen said.
The discovery of the Biden-related documents has once again complicated the DOJ’s investigation of Trump. Experts previously told Newsweek that while the news doesn’t have a legal effect on the probe theoretically, on a practical level, “it changes everything” for Garland.
Should the attorney general indict Trump, “Garland is going to have a tough time explaining to the American people why it’s a crime for Trump to take classified material, but not Biden,” Rahmani said.
