The Department of Justice’s announcement this week that President Joe Biden would face no charges for mishandling classified documents drew renewed attention to the case against former President Donald Trump related to the same issue.

Republicans swiftly criticized the DOJ for choosing to prosecute Trump but not Biden, accusing the department of having double standards.

Special counsel Robert Hur, perhaps in anticipation of this, addressed what he viewed as “material distinctions” between the two cases as part of a lengthy report that detailed his decision not to charge anyone in Biden’s case.

“Unlike the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if proven, would clearly establish not only Mr. Trump’s willfulness but also serious aggravating facts,” Hur wrote.

Hur said that while he would not speak to the merits of Trump’s case, those facts included Trump’s alleged repeated refusal to return all of his documents despite knowing he had them, as well as his alleged lies to federal investigators and attempt to conceal evidence.

Hur said Biden was, by contrast, a cooperative subject. He noted the president returned the classified documents during the investigation whenever his attorneys encountered them, consented to FBI searches for them, and participated in a voluntary interview.

Hur nevertheless intensely criticized Biden, saying his carelessness with classified material risked national security.

The special counsel also included in his report a stunning indictment of Biden’s mental fitness, saying that a jury might reasonably believe Biden made an innocent mistake by retaining documents because his memory was sorely lacking. He said Biden could not remember when major events occurred, including his son’s death and when he left the vice presidency.

Yet Hur’s harsh assessments did not stop Republicans from raising two major grievances: The DOJ gave Biden special treatment, allowing him to skirt charges, and the FBI was soft on him when retrieving documents.

Declining to charge Biden

The DOJ last year, in a separate special counsel investigation, brought 32 counts of willful retention of national defense information, a violation of the Espionage Act, against Trump, as well as eight other felonies, including conspiring to obstruct justice, making false statements, and scheming to conceal objects in a federal investigation.

Hur found Biden “willfully” retained classified documents that related to “seminal moments” from his vice presidency, such as decisions he made about U.S. policy on Afghanistan. He also said Biden disclosed classified material to the ghostwriter of his memoir.

Nevertheless, Hur said there were too many factors in Biden’s case that could cause reasonable doubt, a threshold prosecutors must examine before bringing charges. Biden’s “limited precision and recall” was one consideration, as was the fact that Biden was, as president, allowed to store classified information at his home. Hur had no evidence Biden willfully retained the information at his home during the time that he was a private citizen, aside from a recording of a conversation he had with his ghostwriter in 2017.

Jonathan Turley, a law professor at George Washington University, criticized Hur’s report for containing what he said were “inherent contradictions” and observed how Hur’s approach differed from that of Jack Smith, the special counsel in Trump’s case.

“There is an obvious difference in the apparent default position of two special counsels. Smith seemed to go after Trump with an abandon where Hur seemed to struggle to abandon any basis for charging Biden,” Turley said.

Turley said Hur’s report also “raises the question of whether Biden would have been prosecuted if he was less cognitively challenged.”

Another legal scholar, national defense attorney Bradley Moss, said one key difference missing from Biden’s case was an obstruction factor.

“With almost zero exceptions, the government simply does not prosecute people for willful retention in and of itself,” Moss said. “Every time they have gone forward with prosecuting in those cases, they did it because there was evidence of a separate obstructive act.”

Consensual FBI searches at Biden’s residence

The FBI took a more heavy-handed approach with Trump than with Biden during its retrieval of documents — an observation some Trump supporters were quick to make.

“Presidents Trump’s home was raided and they won’t even prosecute Biden. This is a selective political prosecution!” staunch Trump ally Rep. Marjorie Taylor Greene (R-GA) wrote on X.

Another Trump supporter, Sen. Marsha Blackburn (R-TN), was incredulous that Biden was not charged.

“Meanwhile, President Trump — Biden’s top political opponent — had his private residence raided by the FBI in a very public manner and is facing criminal prosecution by the same DOJ that has time and time again given special treatment to the Biden family,” Blackburn said.

The FBI opened its investigation into Trump in March 2022 and subpoenaed him soon thereafter for all of his classified documents. The subpoena came after the National Archives and Records Administration and Trump had engaged in a year of back-and-forth about the documents and after NARA made “months of demands” to Trump for missing records, according to Smith.

Smith alleged that after receiving the subpoena, Trump lied to the FBI by representing to the bureau that he had returned all the requested documents and that Trump conspired to move boxes with classified material to conceal them from the FBI, as well as attempted to delete security footage to hide evidence.

In August 2022, the FBI executed a controversial search warrant at his Mar-a-Lago home in Florida. The top FBI agent at the Washington Field Office at the time, Steven D’Antuono, told Congress last year that there were internal disputes over whether to alert Trump in advance of the search. But the fear in Trump’s case of documents “being lost, destroyed, [or] going someplace else” superseded the “reputational risk” of an unprecedented search, D’Antuono said.

In Biden’s case, the FBI coordinated with the president’s attorneys to carry out multiple searches. The DOJ first began investigating Biden’s documents on Nov. 9, 2022, roughly a week after being notified of their existence.

The bureau carried out what Hur described as “consensual” searches, noting the FBI searched the Penn Biden Center, his Wilmington, Delaware, home at least twice, and the Morris Library of the University of Delaware. Hur indicated that the proactive, rather than reactive, nature of the communication the FBI received from Biden’s attorneys paved the way for coordinated searches.

Moss said the FBI’s more stern handling of Trump was entirely warranted.

“I’ll quote none other than [former Attorney General] Bill Barr. This is what happens when you mess around with the FBI and you play games,” Moss said.

He speculated that the FBI would never have even resorted to a subpoena, which is far less invasive than a property search, if Trump had been immediately compliant with NARA.

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“If Trump simply called and said, ‘Please come here. Take anything and everything. I don’t want this stuff here’ — he didn’t do that. He played games with them for months,” Moss said, noting that Trump is also accused of instructing his deputies to hide from federal investigators that his compliance with the subpoena had been incomplete.

Trump has pleaded not guilty to all of the charges in the case against him and is now awaiting trial. His lawyers have indicated that ahead of a trial, he will attempt to have his case dismissed.