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President Biden faces questions on classified documents found at his former office

LEILA FADEL, HOST:

President Biden faces questions this morning about his handling of classified government documents. The president's personal lawyers say they found a, quote, "small number of documents" in a locked closet at the Penn Biden Center in November before the midterm elections when they were packing up the president's former office. The documents date back to his time as vice president. The White House says it notified the National Archives on the same day. The Archives collected the documents the following morning, and the matter is under review by the Justice Department. None of the documents were the subject of any previous request or inquiry by the Archives, according to the president's attorneys. Brandon Van Grack is a former federal prosecutor who's investigated and prosecuted dozens of cases involving the Espionage Act, and he joins us now to discuss. Good morning.

BRANDON VAN GRACK: Good morning.

FADEL: So if you could start by just giving us some context here. How serious is this?

VAN GRACK: Any time you're dealing with the mishandling of classified documents, it's serious. And there are three things to keep in - you know, that should happen, which is - first is there should be a full investigation. And that's exactly what the attorney general and the Department of Justice are doing. The second is determining what the national security potential consequences are, and that's looking at the documents, seeing their classification level, seeing if you can determine whether they may have been accessed by individuals who didn't have access to them. And then the third is determining whether there's any criminal exposure to individuals involved.

FADEL: And at this point, we really don't know what's in the documents that were returned to the Archives. Now, the revelation comes as the Justice Department is investigating former President Trump for mishandling classified documents that were seized from his home in Florida. How do these two cases compare?

VAN GRACK: They - you know, the first thing that I think people would jump to is that, you know, the volume of documents are different. There were over 300 classified documents that appear to have been at Mar-a-Lago and only 10 documents here. But really, the key difference concerns what occurred after individuals were aware or made aware that there were likely classified documents in those locations. The only data point we have now is that, with respect to the documents that were found in the - President Biden's office, was that as soon as they were - the day that they were discovered, they were turned over to the Archives and later the Department of Justice.

With respect to the documents at Mar-a-Lago, there at least is some subset of documents that were returned over to the Archives upon request. But there are over a hundred documents that were seized during a search that were not provided. And it's really that set of documents that - it turns into just a key difference in terms of understanding, in particular, whether there's criminal exposure.

FADEL: How unusual is this for classified documents to show up at a president's office after he's left office or, in this case, he was vice president? I mean, we've heard it with Trump. We've heard it now with Biden.

VAN GRACK: Well, it's - in terms of, you know - there haven't been, you know, that many presidents at this point to talk about sort of the totality of how often it happens. I think, you know, a helpful data point is that mishandling of classified documents happens all the time. People make mistakes. They accidentally bring documents home when they're moving from one location to another or if you're in - (inaudible) - zone or abroad. Like, mistakes happen. And in fact, more cases that I investigated for the mishandling of classified documents were not criminally prosecuted. What's different is that, typically, in those situations, as soon as individuals become aware of that mistake or those classified documents, they immediately turn them over and notify authorities. And that's what happened here. That appears to - would have happened on November 2. What becomes distinguishing is when someone becomes aware of those classified documents and doesn't turn them over.

FADEL: Which is what appears to have happened in the case of President Trump. Just in the last few seconds, if this happened before the midterms, why are we only hearing about it now?

VAN GRACK: Well, this is - it's a criminal investigation. And so the reality is criminal investigations, you know, are not intended to be public. They should - you don't want this public discourse to influence the ultimate outcome of those investigations. We want to know what happened. And the best way to preserve that is for the criminal investigation...

FADEL: Brandon Van Grack - thank you so much - is a former federal prosecutor who's investigated and prosecuted dozens of cases involving the Espionage Act. Transcript provided by NPR, Copyright NPR.