Why Trump was charged and Biden wasn’t, according to the special counsel

It did not take former president Donald Trump long to weigh in on the release of a report from special counsel Robert K. Hur assessing President Biden’s possession of classified documents after he left the vice presidency in 2017.

You will recall that this has been a particular point of interest for Trump over the past two years, given that the former president faces federal criminal charges related to his own retention of documents. In campaign speeches and social media posts, Trump has regularly contrasted his situation with Biden’s, framing his rival’s documents as larger in scale and significance than his own.

That was his first response to Hur’s report, too.

“The Biden Documents Case is 100 times different and more severe than mine,” a statement from the former president read, in part. “I did nothing wrong, and I cooperated far more. What Biden did is outrageously criminal — He had 50 years of documents, 50 times more than I had, and ‘WILLFULLY RETAINED’ them. I was covered by the Presidential Records Act, Secret Service was always around, and GSA delivered the documents.”

Even without Hur’s report, these claims are obviously false. But Hur’s report specifically contrasted the two situations, in a way that is indisputably unfavorable for Trump.

The comparison came as Hur was explaining why he was not recommending charges in Biden’s case.

“It is not our role to assess the criminal charges pending against Mr. Trump, but several material distinctions between Mr. Trump’s case and Mr. Biden’s are clear,” the report reads. “Unlike the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts.”

“Most notably,” it continues, “after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. 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.” In contrast, the report continues, Biden cooperated fully.

Hur uses the careful language of allegations, as he and we should. But the evidence bolstering those allegations is robust. What’s understood about Trump’s case demonstrates months of effort by the U.S. government to reclaim material — and months of stonewalling or incomplete responses from Trump’s camp. In early June 2022, his attorneys attested that all material with classification markings had been returned to the government; two months later, the FBI found more than 100 at Mar-a-Lago.

It is — and has always been — about Trump’s failure to respond to the government’s demands more than what he had, as Hur notes. That Trump allegedly shared documents with people or allegedly tried to hide evidence are icing on that cake.

Hur didn’t rebut all of the claims Trump would make in his statement, nor could he, but suffice it to say that Trump’s claims are false. Trump had scores of documents in his possession; Biden, far fewer. Hur did accuse Biden of willfully retaining the documents, but the available evidence makes very clear that Trump willfully retained documents of his own. (The infamous photo of documents arrayed on the floor at Mar-a-Lago were ones that were recovered from the office where he entertained guests.)

Hur’s report debunks other elements of Trump’s rhetoric about Biden’s handling of documents as well. For example, Trump has repeatedly mentioned that Biden had boxes stored at an office in D.C.’s Chinatown neighborhood — suggesting ridiculously that this perhaps indicated that Biden was sharing classified material with Chinese actors. The Hur report establishes that Biden didn’t pack the boxes sent to that transition office and that most of the material stored there was never unpacked before moving on to his permanent office at the Penn Biden Center offices closer to the White House. In fact, Biden didn’t work out of that office regularly but did “come by occasionally for meetings.”

But of course, there was never any evidence to suggest that the Chinatown office was suspicious anyway, beyond it being in a neighborhood with a name that included the word “China.” Similarly, there was never reason to think that Biden’s retention of documents marked as classified was significantly comparable to Trump’s.

While Hur’s report certainly provides other grist for Trump’s political efforts (such as his descriptions of Biden’s memory), it cauterizes the idea that Biden might join Trump in facing criminal charges. And it goes further, explaining why Trump, unlike Biden, did.

Trump, naturally, can be expected to ignore that part of the report.