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Trump’s and Biden’s documents scandals are different. That may not matter.

Biden’s main problems with mishandling classified documents so far are political, not legal.

This week we’ve learned that President Joe Biden inappropriately hung onto classified government documents after his time as vice president in the Obama administration. Based on what we know so far, Biden’s impropriety looks significantly less troubling and legally consequential than former President Donald Trump’s storage of classified documents at Mar-a-Lago. But it’s still a political gift from the heavens for Republicans. Trump and GOP lawmakers are already using the news to slam Democrats as hypocrites, and they are eager to use it to paint Biden as corrupt in the run-up to 2024. The reality is it’s not going to be easy for Biden to dig his way out of this situation by saying his mishandling of documents was less severe than Trump’s.

The Biden scandal kicked off Monday, after CBS News first reported that Biden’s aides had discovered documents with classified markings in November while vacating an office in Washington, D.C., that he used in his capacity as a member of a think tank after he left the Obama administration. Those aides immediately notified the National Archives and returned the documents. After that, Biden’s team decided to search Biden’s residences to see whether there were any other mishandled documents, and as of Thursday, we know that another set of documents was found at a second location — a garage storage space at Biden’s home in Wilmington, Delaware. 

Biden has said he was “surprised” by the discoveries, and his counsel claimed an investigation should show that the documents were “inadvertently misplaced.” The Biden administration is cooperating with the Justice Department, which was notified of the inappropriately kept documents by the National Archives after the first documents were returned. On Thursday, Attorney General Merrick Garland appointed a special counsel to investigate the matter.

Based on the information that has come out so far, Biden’s transgression appears to be considerably less severe than Trump's.

Based on the information that has come out so far, Biden’s transgression appears to be considerably less severe than Trump's, by a number of measures.

In Biden’s case the information was handed over voluntarily to the National Archives — the National Archives apparently wasn’t aware that Biden had taken classified documents that he should’ve returned. By contrast, in Trump’s case, the National Archives was requesting documents that it believed he held. (It seems possible that that’s a function of the sheer volume of the documents Trump had — more on that in a moment.)

Also in Biden’s case, after the documents were discovered, they were handed over the next day. By contrast, when the National Archives asked for documents from Trump, he repeatedly refused to hand them back for months and then eventually only partly complied with requests. The FBI eventually felt compelled to execute a search warrant of his residence based on the accurate suspicion that he hadn’t handed everything in and found Trump had, indeed, kept large numbers of classified documents.

In Biden’s case, the number of classified documents so far appears to be somewhere around 10 in the Washington office and, according to the White House, a “small” number that were discovered in the Delaware residence. By contrast, Trump had hundreds of classified documents. 

As The Guardian’s Hugo Lowell has explained, these different characteristics are critical from a legal perspective. Specifically, Trump’s possession of a particularly big stash of classified documents and the fact that he refused to hand them over is primarily why he’s the subject of a criminal investigation, and what increases the likelihood that he faces criminal prosecution. Meanwhile, Biden’s swift voluntary compliance, and what appears for now to be the possession of a small number of classified documents, makes it less likely that prosecutors will view him as having intentionally kept them. 

Still, this is … not good for Biden. Even if after an investigation it turns out that Biden’s behavior was purely accidental and probably didn’t result in the leak of important information, it appears to be, at the very least, sloppy and reckless behavior by a powerful politician. 

And even in a best-case scenario it's a political own-goal because of the manner in which Biden's actions appear to resemble Trump's actions. Democrats have delighted in the possibility that Trump’s secret storage of documents at Mar-a-Lago could be the basis for criminal charges. And it served as another clear example of Trump’s corruption as he pursues another White House campaign. Now Biden is being slammed over an act that is, at the most basic level, similar to Trump’s: holding on to documents he shouldn’t have.

The differences in Biden’s and Trump’s cases matter. But their headline-level similarity could make Trump's misconduct look less damning, or make Biden's look more severe than it is. Or both.

Will Biden's political future be torpedoed by this new crisis? Based on what we've seen so far, the answer to that is probably not. But it seems likely to invigorate Republican investigations of Biden in the House, and give them more meaty material as they do everything in their power to stop his agenda and damage his reputation.