National Archives silent as disparity between its handling of Biden, Trump documents fuels questions

S E E D E D   C O N T E N T

The National Archives and Records Administration (NARA) has remained mum in the weeks since President Biden's classified documents scandal broke, a vastly different approach it took regarding former President Trump and his storage of sensitive records.

Since the passing of the Presidential Records Act, presidents and vice presidents are required by law to hand over all presidential records to the National Archives. On its website, NARA dubs itself as "the nation's record keeper," that its collection of records "help us claim our rights and entitlements, hold our elected officials accountable for their actions, and document our history as a nation."

Well, it appears the National Archives has fallen quite short of its mission following the revelation that Biden had classified documents from his tenure as vice president and as senator in various locations in his Wilmington, Delaware home including his garage and his Penn Biden Center think tank.

The records, which reportedly include at least 25-30 documents marked classified, were found in five separate disclosures since Nov. 2, the week prior to the November midterms, and were in Biden's possession anywhere between a minimum of six years when he left the vice presidency and at least 14 years when he first left the Senate.

Yet, the National Archives formally requested Trump's large trove of records in May 2021, less than four months after he left office, which had spurred into a years-long dispute between him and the federal agency that ultimately led to the FBI raiding his Mar-a-Lago home in August 2022.

Trump and his defenders have said that unlike Biden when he left the Obama administration, Trump had the authority to declassify his documents as an outgoing president.

Fox News Digital sent NARA several questions regarding its handling of Biden's records versus Trump's. NARA declined to comment for the story.

NARA, however, was quite outspoken during the Trump saga. Beginning in early 2022, the National Archives put out a series of press releases commenting on what had been collected.

"Some of the Trump presidential records received by the National Archives and Records Administration included paper records that had been torn up by former President Trump," a press release from Jan. 31, 2022 read. "As has been reported in the press since 2018, White House records management officials during the Trump Administration recovered and taped together some of the torn-up records. These were turned over to the National Archives at the end of the Trump Administration, along with a number of torn-up records that had not been reconstructed by the White House. The Presidential Records Act requires that all records created by presidents be turned over to the National Archives at the end of their administrations."

In a Feb. 7 2022 press release, NARA wrote it had "arranged for the transport from the Trump Mar-a-Lago property in Florida to the National Archives of 15 boxes that contained Presidential records, following discussions with President Trump's representatives in 2021" and that Trump's team was "continuing to search for additional Presidential records that belong to the National Archives."

"As required by the Presidential Records Act (PRA), these records should have been transferred to NARA from the White House at the end of the Trump Administration in January 2021," NARA shamed Trump.

The next day, NARA was compelled to issue a separate statement insisting the agency did not "raid" Mar-a-Lago in collecting Trump's records.

Beginning in August 2022, following an actual FBI raid of Mar-a-Lago, the National Archives issued a series of statements defending past presidents, most often Barack Obama, as critics claimed he too was in possession of classified documents.

"The National Archives and Records Administration (NARA) assumed exclusive legal and physical custody of Obama Presidential records when President Barack Obama left office in 2017, in accordance with the Presidential Records Act (PRA)," NARA wrote Aug. 12, 2022. "NARA moved approximately 30 million pages of unclassified records to a NARA facility in the Chicago area where they are maintained exclusively by NARA. Additionally, NARA maintains the classified Obama Presidential records in a NARA facility in the Washington, DC, area. As required by the PRA, former President Obama has no control over where and how NARA stores the Presidential records of his Administration."

A Sept. 8, 2022 statement from NARA attempted to debunk claims that it had a large number of boxes from the Obama administration missing, writing "This is false. NARA has never issued any such statement and is not aware of any missing boxes of Presidential records from the Obama administration." NARA later issued another statement on Sept. 23, 2022 saying it administers Obama's presidential library that records held there are "leased, controlled, managed, and used exclusively by NARA" and that all classified records "were stored in an appropriately secured compartment" at the Obama Foundation in Hoffman Estates, Illinois until the completion of his library in Chicago.

Then in a press release on Oct. 11, 2022, NARA offered a full-throated defense of Presidents Obama, George W. Bush, Bill Clinton, George H.W. Bush and Ronald Reagan, saying it "assumed physical and legal custody of the Presidential records" from their administrations when they left office.

"Reports that indicate or imply that those Presidential records were in the possession of the former Presidents or their representatives, after they left office, or that the records were housed in substandard conditions, are false and misleading," NARA wrote at the time.

But a lot has happened since NARA stuck its neck out for past presidents. In addition to Biden's lawyers finding classified documents in his possession, former Vice President Mike Pence revealed on Tuesday that he, too, had classified documents in his Indiana home, which were since turned over to the National Archives.

This raises questions whether other office holders including the former presidents NARA vouched for, actually complied and handed over every presidential record.

George Washington University Law Professor Jonathan Turley pointed out how the National Archives has been "far less prominent" during the Biden scandal than the Trump saga, telling Fox News Digital it "will need to be more transparent with Congress or risk contempt sanctions."

Derrick Morgan, who served as staff secretary for former Vice President Dick Cheney and worked with the agency to hand over his boss' records, urged NARA to be "even-handed" when it comes to collecting records from office holders, calling out what appears to be a "double standard" between its outspokenness towards Trump but its silence on Biden.

"NARA depends on the good faith of the departing principal to turn over Presidential records before the end of the term of office," Morgan told Fox News Digital. "Unless there were obvious gaps in the record, or they were tipped off, NARA might never know about missing documents. In time perhaps we will discover who knew what about these documents."

Cheney's former general counsel Shannen Coffin similarly stressed it's the responsibility of presidents and vice presidents to hand over records to the National Archives, saying the agency "had no reason to know" what was missing.

"NARA only has the statutory duty to assume responsibility for those presidential records turned over by the president," Coffin told Fox News Digital.

But there is growing concern whether NARA itself is no longer immune to being partisan. It is currently run by acting archivist Debra Steidel Wall, who was appointed by Biden in May 2022. Her predecessor wasn't a Trump appointee but rather a holdover from the Obama administration.

David Ferriero, who assumed the role from November 2009 until his retirement last April, managed to hold onto his post at NARA throughout Trump's presidency, an unusual staffing stalemate by as presidents typically choose their own archivists.

It was under Ferriero's watch that the National Archives went to battle with Trump over his records, which led to the unprecedented FBI raid of a former president's home.

Ferriero even put his name on one of NARA's press releases during its standoff with Trump.

"NARA pursues the return of records whenever we learn that records have been improperly removed or have not been appropriately transferred to official accounts," Ferrierro stated in the Feb. 7, 2022 press release. "The Presidential Records Act is critical to our democracy, in which the government is held accountable by the people. Whether through the creation of adequate and proper documentation, sound records management practices, the preservation of records, or the timely transfer of them to the National Archives at the end of an Administration, there should be no question as to need for both diligence and vigilance. Records matter."

Fox News contributor Joe Concha sees NARA like "almost everything else deemed non-partisan in Washington," telling Fox News Digital "They're profoundly partisan."

"Otherwise, we would have heard from them by now," Concha said.

Concerns over the politicization of the National Archives have made their way to Capitol Hill. House Oversight Chairman James Comer, R-Ky., sent a letter to Steidel Wall earlier this month informing her that his committee has launched an investigation on "whether there is a political bias at the National Archives and Records Administration."

"For months, NARA failed to disclose to Committee Republicans or the American public that President Biden—after serving as Vice President—stored highly classified documents in a closet at his personal office," Comer told Steidel Wall in the Jan. 10 letter. "Meanwhile, NARA instigated a public and unprecedented FBI raid at Mar-a-Lago—former President Trump's home—to retrieve presidential records. NARA's inconsistent treatment of recovering classified records held by former President Trump and President Biden raises questions about political bias at the agency."

Comer's letter requested "all documents and communications" between NARA and the White House, Department of Justice and the Penn Biden Center "no later than January 24, 2023," which was Tuesday.

A spokesperson for the House Oversight Committee told Fox News Digital that NARA "has not produced the requested documents to the Committee at this time," adding that Rep. Comer's request "still stands and anticipates moving forward with a transcribed interview with NARA's general counsel soon."

Critics have speculated whether Hunter Biden has had access to his father's classified documents over the years since many of them were found in the president's Wilmington home.

The documents reportedly found in recent weeks pertain to the U.K., Iran and Ukraine, the country Hunter Biden has long had business ties with that have fueled accusations that he leveraged his father's office for financial gain.

Both Trump and Biden are the subjects of ongoing special counsel investigations looking into their mishandling of classified documents.

Attorney General Merrick Garland appointed Jack Smith back in November to look into Trump's possession of presidential records as well as his role in the effort to overturn the 2020 presidential election and the events of Jan. 6 just days after the former president announced his 2024 bid. Earlier this month, Garland appointed Robert Hur to investigate Biden, who has repeatedly said he intends to seek reelection.

It is unclear whether Garland will appoint a separate special counsel to look into Pence, who is also floating a presidential run.

Political pundits have speculated that the revelations of Biden and Pence's possession of classified records will be beneficial for Trump, making it more difficult for the DOJ to prosecute the former president.