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Biden didn’t have to publicly disclose classified documents: Legal expert

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WASHINGTON, D.C. (NewsNation) — The White House announced Monday that some potentially classified documents from President Joe Biden’s time as vice president were found in his former office and were being reviewed by the Department of Justice. Meanwhile, investigations into classified documents seized from former President Donald Trump’s Florida home are ongoing.

The two high-profile cases have raised questions about how often classified documents are mishandled, how that can be prevented and what the consequences and next steps may be in each case.

“It is always serious when there is a mishandling of classified information. Nobody should denigrate or minimize that concern,” said National Security Attorney Mark Zaid. “The reality is it is very common that we see mishandling of classified documents.”

Zaid said that while the basic facts of Biden’s and Trump’s cases seem similar, they “diverge significantly” after that point.

“Everything that the Biden folks have done is drastically different than what the Trump personnel did at the time. (Biden’s team) immediately notified the White House, they immediately notified the (National Archives) and the Archives immediately retrieved the documents,” he said.

Though information is still preliminary, Zaid said it appeared in Biden’s case that there was “no evidence of any type of obstruction, delays, hiding of documents, all of which have led to where we are today with the Trump situation at Mar-a-Lago.”

NewsNation’s Kellie Meyer interviewed Zaid about the various questions swirling around the two investigations. The following has been edited for length and clarity:

National Security Lawyer Mark Zaid during his interview with NewsNation’s Kellie Meyer.

Q: What are the rules around the disclosure of mishandling of documents, and why did it take so long for Biden’s team to reveal it?

Zaid: There is no legal obligation that anyone had to disclose that this occurred, and if everyone remembers back to Mar-a-Lago, we didn’t know about that situation for quite a significant amount of time.

In the same vein, someone in both cases decided to let the media know that this situation happened. The National Archives just doesn’t publicize this information.

Now, people could debate whether the Biden administration should have said something sooner. But that is more of a political discussion. It’s not a legal one.

There’s going to be an extraordinary amount of politicization and partisanship trying to equate the two situations. But the reality is, other than politically and from a public relations standpoint, the situations couldn’t have been more different, at least based on what we know so far.

Q: How common is it for sensitive documents to be mishandled and what typically happens after that?

Zaid: The reality is it is very common that we see mishandling of classified documents. Folks will bring a stack of papers home from work, and didn’t realize that they grabbed the classified document at the bottom. Or they retired and packed up their office and five years later, they’re going through their garage and … (they) find some classified documents.

These are historically handled administratively. It could impact an individual’s security clearance or employment. It is rare that a case ever escalates to a criminal standpoint unless it is so egregious, by way of a hoarder … where their house is full of classified information, or as we may see with Mar-a-Lago, there’s evidence of obstruction and intentionality with respect to avoiding turning over the documents.

Q: How do you think this will unfold next?

Zaid: Well, from what I’ve seen in press reports, obviously we’re hearing about this now in January — it actually happened two months ago. And Attorney General Merrick Garland appointed a (Trump-era) U.S. attorney to investigate back in November. According to press reports, his investigation is almost complete.

I would imagine that the findings of that report in some summary fashion — if not in detail — will be released to the public. It will certainly will be sought by (lawmakers on) Capitol Hill, by the Republicans, for sure. And it should also be sought by the Democrats, quite frankly, because this is a serious allegation that should be investigated.

If it turns out that none of the documents were ever compromised, and there are no further documents that are in the possession of the Biden Center, I imagine that nothing will happen, quite frankly, from this case, as a legal matter. As a political matter, that’s a completely different story.

Q: How was the handling of Trump’s case different and why?

Zaid: So in Trump’s case, the National Archives decided first that ‘Hey, we’re missing documents,’ and approached the Trump team. The Trump team delayed for significant periods of time and refused to respond to a number of requests. Once they finally turned over the information and it was learned that there were classified documents within (the boxes), they then stalled in providing additional information about it.

There was a significant year-plus time period of going back and forth to gain access to information that wasn’t properly stored. We ultimately have learned that at least the factual allegations are that Trump intentionally directed information to be taken to Mar-a-Lago and for information to be taken from the storage room to his office, where once the FBI executed their search warrant, they found more classified documents in his private part of the residence at Mar-a-Lago.

So there is evidence of obstruction, theft and false statements, none of which are present so far in this recent case with the Biden Center.

Q: What is the potential fallout for Biden in this case?

Zaid: The political fallout is going to be the most severe consequence if the facts stay the way that they are.

Most people, I think, are not going to be able to distinguish between (the two cases) and they’re going to try and equate it on an equal basis. But the reality is these cases, based on what we know so far, are so fundamentally different, that a comparison is almost impossible to make.

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