“Trump, unlike Biden, is alleged to have engaged in extensive and repeated efforts to obstruct justice and thwart the return of documents bearing classification markings,” Harbach added. “And the evidence concerning the two men’s intent — whether they knowingly possessed and willfully retained such documents — is also starkly different.”
Trump is fighting criminal charges for hoarding classified secrets at his Mar-a-Lago estate after leaving office, and then allegedly resisting efforts by the National Archives and Justice Department to recover them. Harbach emphasized that the volume and sensitivity of the records kept by Trump stood in stark contrast to other examples of mishandling of classified records that have been resolved without criminal charges.
“There has never been a case in American history in which a former official has engaged in conduct remotely similar to Trump’s,” he wrote.
It was the first time Smith has raised Hur’s findings in a court filing. Earlier this month, Hur delivered a blistering assessment of Biden’s handling of classified materials over his 40-year career in office, and he included a stinging assessment of Biden’s age and memory that the president’s defenders have described as a gratuitous political attack, particularly in a report that recommended no criminal charges.
Biden has repeatedly emphasized that his own lawyers proactively informed the Justice Department when they discovered classified material at his residence in Delaware, permitted searches of his residences and actively cooperated with investigators. Trump, meanwhile, is charged with seeking to mislead the Justice Department — and even his own lawyer — about the documents he held at Mar-a-Lago.
On a macro level, the citation by one special counsel investigating a former president (Smith) of another special counsel who investigated the current president (Hur) — both appointed by Attorney General Merrick Garland — underscores the extraordinary role the Justice Department is playing as Biden and Trump head for a 2024 rematch.