According to prosecutors working for Special Counsel Jack Smith, the way Trump handled secret documents is not "remotely" comparable to Biden's handling of critical national security information, as detailed in the report released this month by competing Special Counsel Rob Hur.
In response to Trump's request to dismiss the indictment "based on selective and vindictive prosecution," Smith responded to the critical Hur report with a 12-page document on Monday, according to Fox News.
"The defendants have not identified anyone who has engaged in a remotely similar suite of willful and deceitful criminal conduct and not been prosecuted. Nor could they. Indeed, the comparators on which they rely are readily distinguishable," Assistant Special Counsel David Harbach wrote.
Harbach called President Biden the "primary comparator" of Trump and co-defendants Walt Nauta and Carlos de Oliveira, whose conduct is described in the Hur report on classified documents recovered from Biden's Delaware home and the Penn Biden Center.
"But as the Hur Report itself recognizes, ‘several material distinctions between Mr. Trump’s case and Mr. Biden’s are clear,’" Harbach wrote.
"Most notably, 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.
"And the evidence concerning the two men’s intent – whether they knowingly possessed and willfully retained such documents – is also starkly different, as reflected in the Hur Report’s conclusion that ‘the evidence falls short of establishing Mr. Biden’s willful retention of the classified Afghanistan documents beyond a reasonable doubt.’"
Biden "would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory," according to Hur.. This was the implication of the report, which found no criminal charges to be justified.
It would be difficult to convict Trump, the special counsel said, "by then a former president well into his eighties-of a serious felony that requires a mental state of willfulness." Additionally, it mentioned how Biden mixed up the dates of his son Beau's passing.
Those in the White House and Biden's inner circle see the Hur report's findings regarding Biden's mental health and age as "gratuitous" political attacks.
The special counsel's team views Trump's actions as exceptional, even though numerous government officials have had classified documents after leaving office -sometimes unintentionally, sometimes negligently, and very rarely intentionally - and there have been a "very small number of cases in which former government officials who have been found in possession of classified documents have briefly resisted the government's lawful efforts to recover them," as Harbach explained on Monday.
"There has never been a case in American history in which a former official has engaged in conduct remotely similar to Trump’s," Harbach wrote.
"He intentionally took possession of a vast trove of some of the nation’s most sensitive documents – documents so sensitive that they were presented to the President – and stored them in unsecured locations at his heavily trafficked social club," he wrote.
"When the National Archives and Records Administration ("NARA") initially sought their return (before learning that they contained classified national defense information), Trump delayed, obfuscated, and dissembled.
"Faced with the possibility of legal action, he ostensibly agreed to comply with NARA’s requests but in fact engaged in additional deception, returning only a fraction of the documents in his possession while claiming that his production was complete."
