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Noah Feldman

The Difference Is That Biden Gave the Documents Back

Trump’s retention of classified documents likely violates the Espionage Act because he refused to return them.

Again? So soon?

Again? So soon?

Photographer: Chip Somodevilla/Getty Images North America

We still don’t know a lot of important facts about President Joe Biden’s retention of classified documents at his Penn-Biden center office and Delaware home. For that matter, there’s a lot we still don’t know about former president Donald Trump’s retention of classified documents at Mar-a-Lago. What is certain is the legal concept that prosecutors will have to use to determine whether to prosecute either president: intent.

The relevant provision of the Espionage Act is fairly clear. It’s a crime if you both “willfully” retain classified documents and also “fail” to deliver them “on demand” to the government official “entitled” to receive them.