Kevin McCarthy can’t get too giddy over Biden documents cache. Trump’s case is much worse | Opinion

As the new Republican speaker of the House of Representatives, Kevin McCarthy may well be giddy with the news of classified documents being found in a former office used by President Biden, as well as in his Delaware home.

But as the news broke Thursday of the second batch having been discovered, another development occurred that undercuts one of McCarthy’s main talking points in these early days of the 118th Congress.

McCarthy was irate last year when Attorney General Merrick Garland appointed a special counsel to investigate the hundreds of classified documents that were recovered at former President Trump’s estate in Florida. He called it the “weaponization” of federal law enforcement with the intent to discredit Trump and Republicans. And McCarthy promised to create a congressional panel to examine Garland’s actions.

That panel has just been created. McCarthy posted on social media a check mark for the box listing that to-do.

On Thursday, Garland appointed a special counsel to now look into Biden’s possession of classified documents — materials that should not have been stored at his Washington, D.C. office or at his residence. The special counsel, Robert K. Hur, is a prosecutor who worked in the Trump administration.

Garland is a Democrat who was nominated by Biden. And yet Garland appointed the counsel to look into matters involving his boss, the president.

How’s that for weaponization?

Until more is known about the documents that Biden had, McCarthy and his fellow Republicans in the House run the risk of engaging in false equivalency. Namely, that Trump’s sin of improper records possession is no worse than Biden’s.

Not so fast.

Public records

The law is clear on what it requires presidents to do with documents generated during their tenure. Under the Presidential Records Act of 1978, “any records created or received by the President as part of his constitutional, statutory, or ceremonial duties are the property of the United States government.” The act says such documents are to be given to the National Archives once a term is completed.

So removal of documents to a private location is not allowed, and in fact can be a criminal violation. Trump is under investigation now for that very possibility.

That Biden had confidential documents in his possession outside of the National Archives is also wrong, just as it was with Trump. But it is premature to say Biden’s transgression is just as bad as Trump’s, or that Trump’s is no worse than what Biden did. Let’s break it down:

Alerting on discovery: After he left the vice presidency following the Obama administration, Biden set up an office in downtown Washington, D.C. It was during a cleaning out of that office last fall that an attorney working for Biden discovered the government materials. CNN says 10 documents were marked classified in a folder labeled “personal.” The lawyer then contacted the National Archives to inform it of the discovery.

The finding occurred on Nov. 2, six days before the general election. It did not become public until Monday.

Then in late December Biden’s representatives reported finding a second set of documents, this time in his garage.

Bottom line: Biden is taking the lead on reporting the discovery of the records and is cooperating with the National Archives.

In Trump’s case, staff at the archives office realized it did not have all the records it should have once he left the White House, and had to repeatedly engage with the former president’s representatives to get those materials. Trump turned over some boxes, and archives staff found documents marked top secret and confidential and alerted the Justice Department. Other materials that were missing forced a subsequent raid of Trump’s residence.

Degree of difference: In Biden’s case, 10 documents from his time as Obama’s vice president were in a folder found in a locked closet in the D.C. office. The materials discovered in his garage are yet to be described.

Trump’s case, by comparison, involves hundreds of documents, both rated top secret and confidential. Using a court-approved subpoena sought by the Justice Department, FBI agents found sensitive materials in different areas at the Mar-a-Lago residence.

Why and why not a raid: The reason there was no raid on Biden’s D.C. office is that his own lawyer made the National Archives aware of the missing documents.

Trump, by contrast, resisted the National Archives’ efforts to get his records. CNN sums up Trump’s approach this way: “At various points, Trump denied he had the material, claimed it was planted by the bureau (FBI), insisted that he owned it or ludicrously suggested he had simply declassified it with a private thought.”

A grand jury subpoena led to an initial search in June of 2022. Then the FBI was tipped that not all materials had been handed over at Mar-a-Lago. That led to the raid.

What McCarthy should care about

Neither Trump nor Biden, nor any other federal elected official, have a right to government records generated during their times of service. Those belong to the American people.

So it is proper for McCarthy to criticize Biden over the documents he had. But McCarthy should equally criticize Trump. McCarthy’s highest concern should be the integrity of government records, not the standing of the former president.

As a House speaker, he should be better than he is, but he won’t be. His one-dimensional partisanship always bends toward fealty to Trump, demonstrating that McCarthy is as an unfit speaker as Trump was as an unfit president.

This story was originally published January 12, 2023 at 5:27 PM.