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Biden Critics Lie Themselves into Knots Defending Pence

Hypocrisy and distortion in Republicans’ attempts to find critical differences between the two classified documents cases.
January 27, 2023
Biden Critics Lie Themselves into Knots Defending Pence
Mike Pence (Photo by Chip Somodevilla/Getty Images)

Do the Justice Department, the FBI, the National Archives, and the media apply a partisan double standard to politicians who wrongly retain classified documents? That’s what Republicans have alleged since Jan. 9, when CBS News reported that President Joe Biden, like former President Donald Trump, had stored records with classified markings in an unsecured location.

The two cases were significantly different: Trump had kept many more documents than Biden had, and Trump had long resisted the government’s efforts to recover some of his documents. But Republicans insisted that the government was treating Trump more harshly than Biden—in particular, by searching the former president’s estate to recover documents he had withheld—because Trump was a Republican, not because he was a scofflaw.

On Tuesday, that allegation of partisan bias fell apart. Trump’s former vice president, Mike Pence, disclosed that he, too, had found classified documents at his home. Like Biden—and unlike Trump—Pence had promptly offered to hand over all relevant records to the government. And the government, in response, had allowed Pence, like Biden, to relinquish the documents on his own terms, without a court-ordered search.

Together, the three cases show that the government hasn’t applied a partisan double standard. Pence had one thing in common with Trump: Both of them were Republicans. Pence had a different thing in common with Biden: Both of them had cooperated with the government. The two Republicans were treated differently. The two men who had cooperated with the government—one Democrat, one Republican—were treated similarly. Cooperation, not party, was the standard applied by the feds.

Many Republican politicians and conservative pundits refuse to accept this refutation. To maintain the myth of a partisan double standard, they claim that Pence cooperated more than Biden did. They also claim that despite Pence’s cooperation, the government treated Biden more favorably than it treated Pence. In both cases, they’re wrong. Let’s examine their allegations.

1. Pence, unlike Biden, kept his documents securely stored. “When you compare Biden to Pence, Biden doesn’t look so good,” says Fox News host Jesse Watters, because “Pence’s box of documents were [sic] still taped up.” Monica Crowley, a former Trump official, agrees: “In Mike Pence’s case, the boxes were not open.”

But there’s no reliable evidence that Pence’s boxes were continuously sealed after they left the government’s custody. Sources who spoke to CNN (for the article that broke the story of the Pence documents) said the boxes went to two unsecured locations: first to a Pence residence in Virginia, then to his home in Indiana. At the Indiana home, according to the CNN report, “The boxes were not in a secure area, but they were taped up and were not believed to have been opened since they were packed, according to Pence’s attorney.”

Not believed to have been opened. It’s good that the boxes were taped—boxes that get shipped across the country usually are—but it’s easy to open a box and then tape it back up. To cite a highly relevant example: Two minutes after vouching for Pence because his boxes were taped, Watters showed his audience a picture of a box from Hunter Biden’s laptop, labeled “Important Docs.” Watters asked, “Were [Joe Biden’s] classified documents in that box? That could be the box that the FBI seized.”

The box was wrapped in tape. It was also lying open. And tape, unfortunately, can be removed and replaced just as easily in Pence’s house as it can in Biden’s.

2. Pence, unlike Biden, told the truth about where his documents came from. According to Sen. Ted Cruz, Pence has been perfectly candid:

He’s explained where these came from. What his office has put out is that in packing up the vice presidential offices, that there were a couple of papers that were classified that were inadvertently put with non-classified materials. That was a mistake. But there’s no reason to think it was anything but inadvertent. That is very different from what Joe Biden has done. Joe Biden has given zero explanation as to how [his] classified documents got there.

Cruz’s account appears to be one of four or five different versions the Pence team has “put out.” According to the New York Times, “people familiar with the matter said that the documents in question were largely previously held at the vice president’s residence at the Naval Observatory,” and that’s why they weren’t thoroughly screened. CNN’s sources, however, say that some of the boxes at Pence’s home “came from the White House in the final days of the Trump administration, which included last-minute things that did not go through the process the rest of Pence’s documents did.” This sounds similar to what CBS News correspondent Robert Costa was told: “Pence’s aides did not begin packing his files until AFTER Jan. 6, 2021” because of you-know-what. Meanwhile, the Associated Press reports that according to a Pence aide, “Other material came from a West Wing office drawer.”

Which version of Pence’s story is correct? I’ll let the Justice Department sort that out. But if one of them is right, it appears that others must be at least slightly misleading.

3. Pence, unlike Biden, informed the proper authorities. Fox News legal analyst Gregg Jarrett says Biden’s behavior is more suspicious than Pence’s in part because Biden’s team didn’t directly notify DOJ about his documents. “They notified the National Archives, hoping that the Archives, I think, would simply sweep it under the rug, put the files back, and tell nobody about it,” says Jarrett. It was the Archives, specifically its inspector general, that “notified the Department of Justice,” Jarrett points out.

But that’s what Pence’s team did, too. His attorney, Greg Jacob, disclosed the discovery of Pence’s documents in a Jan. 18 letter addressed to the Archives, not DOJ. He also sent the Archives a subsequent letter, dated Jan. 22, that went into more detail. The Archives, not the Pence team, told DOJ about the discovery.

4. Pence, unlike Biden, promptly told the public. Rep. Jim Jordan says Biden’s lawyers concealed the discovery of his documents “from the American people. And I think that is the big difference here.” In particular, Jordan complains that Biden’s team knew about his documents “before the midterm elections and didn’t share it with the American people.” By contrast, says Jordan, Pence “found it, fixed it, self-reported it.” Jarrett agrees: “Pence notified Congress immediately.”

Nope. That isn’t what happened. Biden’s team claims to have notified the Archives on Nov. 2, the day a Biden attorney found the first classified document. The letter from Pence’s lawyer to the Archives, however, was sent on Jan. 18, two days after his documents were “discovered on January 16,” according to the Pence team’s written chronology. And Pence didn’t tell Congress—or anyone else outside of the Archives and DOJ, apparently—until Jan. 24.

That’s eight days between discovery and public disclosure of Pence’s documents. It’s true that Biden’s team took a lot longer. But according to Jordan, Cruz, and other Republicans, the crucial delay was between Nov. 2 and the Nov. 8 midterms. A six-day delay by Biden was corrupt, but an eight-day delay by Pence was commendable.

5. DOJ’s silence about the Biden case—but not its silence about the Pence case—was a conspiracy. Jordan, Marjorie Taylor Greene, and other Republicans accuse DOJ of “collusion” for keeping mum about Biden’s documents. Elise Stefanik, the chair of the House Republican Conference, defends Pence but says the FBI “clearly has covered up” for Biden. Cruz levels the same allegation: “It was clearly a coverup. They claim they discovered this on Nov. 2. That was a week before the election. And the Biden White House covered it up. The Department of Justice covered it up. The FBI covered it up.”

It’s true that DOJ and the FBI didn’t tell the public about Biden’s documents. But they didn’t tell the public about Pence’s documents, either. When the AP asked about the Pence revelations, DOJ and the Archives refused to comment. On Thursday, when reporters asked about classified records kept by Pence, Biden, and Trump, Attorney General Merrick Garland stiffed them again.

6. DOJ allowed Biden’s team, but not Pence’s, to continue handling potentially problematic records. Jordan and his allies say it’s suspicious that DOJ, instead of taking over the search for classified documents in Biden’s files, allowed Biden’s lawyers to do it instead. On Wednesday, in an interview prompted by the Pence case, a reporter for One America News asked Rep. Troy Nehls whether it seemed curious that DOJ “allowed private practice attorneys” to secure Biden’s documents. Nehls replied that this deference was obviously partisan. “Look who’s in charge of the Justice Department: Garland,” he observed.

In the Pence case, FBI agents did show up, with his consent, to retrieve files his lawyers had identified as potentially classified. But the government also gave Pence’s team considerable deference. According to the Jan. 22 letter from Pence’s lawyer, the Archives “determined it would be appropriate for the Vice President’s agents to transport the four boxes”—now cleansed of documents with classified markings, but still containing other government records—to Washington, D.C. for a Presidential Records Act review of remaining material by the Archives. And that’s exactly what they did.

In fact, Pence’s lawyers were the ones who segregated material inside the boxes before handing them over. According to the Jan. 22 letter, during a “review by the Vice President’s personal attorney,” “attorney-client privileged materials . . . were placed in sealed and clearly labeled envelopes” in the boxes, in the same “order in which they were discovered.”

None of the Republican claims about Pence holds up. His aides and lawyers told various stories about where the documents came from. He stored the documents in at least two unsecured locations. The boxes were taped, but as conservatives are happy to point out in Biden’s case, tape is easily removed. Pence’s lawyers took longer to inform the government than Biden’s lawyers did. They didn’t tell Congress or the public for eight days—longer than the six days Republicans say was inexcusable in Biden’s case. The government allowed Pence’s team, like Biden’s, to manage custody of documents that need to be inspected. And DOJ kept its mouth shut about Pence’s documents, as it had about Biden’s.

That doesn’t make Pence a liar or spy. He’s just a fallible politician who lost track of documents in what seems to be a poorly managed system for monitoring the flow of classified material. Like Biden, Pence cooperated with the government, and the government, in turn, cooperated with him. Nobody had to issue a subpoena or get a court order to recover his documents.

Only one guy, Trump, required that kind of escalation. And it isn’t because he was a Republican. He could have cooperated like Pence and Biden. He didn’t.

Correction (January 27, 2023, 9 p.m. EST): Due to an error that arose during editing, the sentence above that reads “Pence didn’t tell Congress—or anyone else outside of the Archives and DOJ, apparently—until Jan. 24.” originally gave the date Jan. 23.

William Saletan

William Saletan is a writer at The Bulwark.