In the case of the classified documents, it’s more serious for Trump than Biden

Donald Trump’s retention of documents marked classified at his Mar-a-Lago resort has aggravating factors that might support his criminal prosecution unlike the discovery of some documents also marked classified stored at Joe Biden’s former institute from his time as vice-president, legal experts said.

The US justice department has clear criteria for prosecuting people who intentionally mishandle highly sensitive government documents, and the facts of the Trump documents case appear to satisfy more elements than in the Biden documents case.

Broadly, the Department of Justice has typically pursued prosecutions when cases have involved a combination of four factors: wilful mishandling of classified information, vast quantities of classified information to support an inference of misconduct, disloyalty to the United States and obstruction.

The criminal investigation into Trump touches on at least two of those elements – obstruction, where a person conceals documents with an intent to impede a government agency, and the volume of classified materials at Mar-a-Lago – unlike the Biden case, which appears to touch on none.