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Biden owes the public some answers on classified documents

After finding a small set of classified documents in the president’s former office and private home, Biden and his legal team have diligently cooperated with law enforcement. But that’s the bare minimum.

President Biden responded to a reporter's question after speaking about the economy in the South Court Auditorium in the Eisenhower Executive Office Building on the White House Campus, Jan. 12, in Washington.Andrew Harnik/Associated Press

The White House has some explaining to do. On Monday, CBS News reported that the Department of Justice is reviewing classified documents that were found at President Biden’s former think tank office in November. On Tuesday, Biden told reporters that he was “surprised” to learn of the documents, which dated to his stint as vice president. And on Wednesday, NBC News reported that a second batch of classified documents had been found in Biden’s Delaware home.

Biden’s legal team appears to be fully cooperating with law enforcement. His lawyer says that the White House counsel’s office notified the National Archives of the documents the same day that they were discovered and that they were turned over the following day. The president’s team also conducted a search for any other potential classified materials, which his lawyer says concluded on Wednesday.


Cooperating with law enforcement is good, but it’s the bare minimum. It’s crucial that Biden and his team be as transparent about this review as possible. That should be true any time a president is in hot water. But it’s especially true now, given that his Justice Department is also handling the potentially explosive investigation into a different batch of classified documents that were found at former president Donald Trump’s Mar-a-Lago estate. And if Biden wants his Justice Department to earn the appearance of fairness in its investigations into his predecessor, the review of his own apparent mishandling of classified documents must be as independent and proper as possible.

That means giving the public a detailed account of what happened. How did those papers end up at his private office and in his garage? Were they deliberately taken by him or an aide at the end of the Obama administration? Why did it take so long for the documents to be discovered, and why did the White House stay mum on the matter for months until it was leaked to the press? “I’m going to get a chance to speak on this soon, God willing,” Biden told reporters on Thursday.


For his part, Attorney General Merrick Garland has so far taken the appropriate steps. On Thursday, he named Robert K. Hur, who was a US attorney during the Trump administration, to serve as a special counsel, insulating the review from potential influence from the president and his allies.

This is, no doubt, a political headache for Biden. Republicans quickly pounced, suggesting that the news called into question the DOJ’s investigation of Trump’s mishandling of classified documents. How could the Biden administration possibly prosecute Trump for storing top-secret government documents at Mar-a-Lago now?

But the reality is that there appear to be significant differences between the two cases.

Trump, for example, did not cooperate with law enforcement, and the reason his case came to light in the first place was because the National Archives realized that certain classified documents were missing and requested them from Trump. The former president and his team proceeded to mislead investigators about which documents were in Trump’s possession, leading to suspicions of concealing government property and obstructing justice. That’s a much more serious legal matter than what Biden seems to be dealing with. (There’s also the matter of volume: Trump had illegally kept over 300 classified documents while it’s reported that Biden’s team found about 10 documents in his office and that the batch found at his home was also a “small number.”)


The legal distinctions in these two cases matter. Whatever political optics may now cloud the Trump investigation in the court of public opinion, the Department of Justice must make its decisions on how to proceed based solely on the legal facts. And, of course, that’s true for Biden’s case as well. While some of Trump’s allies may now say that Biden’s story makes prosecuting Trump all the more fraught, it actually makes it all the more appropriate. As this editorial board has argued before, one of the reasons for prosecuting Trump for serious crimes is to send a clear message to his successors, including Biden, that the law also applies to them. That prospect in and of itself could encourage Biden and his team to be on their best behavior during this investigation.

Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.