The difference? Biden returned files willingly
By Noah Feldman / Bloomberg Opinion
We still don’t know a lot of important facts about President Biden’s retention of classified documents at his Penn-Biden center office and Delaware home. For that matter, there’s a lot we still don’t know about former president Donald Trump’s retention of classified documents at Mar-a-Lago. What is certain is the legal concept that prosecutors will have to use to determine whether to prosecute either president: intent.
The relevant provision of the Espionage Act is fairly clear. It’s a crime if you both “willfully” retain classified documents and also “fail” to deliver them “on demand” to the government official “entitled” to receive them.
The adverb “willfully” is standard legal language, a close cousin to “knowingly.” To act willfully, in the legal sense, is to act intentionally, consciously and voluntarily. As the Department of Justice has put it, relying on judicial interpretation of statutes, “An act is done ‘willfully’ if done voluntarily and intentionally and with the specific intent to do something the law forbids.”
In practice, this requirement of willfulness could very well mean that Trump committed a crime with respect to the classified material he retained, while Biden did not. Consider that Trump, through representatives, allegedly refused for months to return more than 30 boxes of documents sought by the National Archives; a refusal that eventually prompted the FBI to show up at Mar-a-Lago and seize the material. That refusal sounds very much like it matches the language of the Espionage Act, which requires both unauthorized retention of classified documents and the refusal to hand them over.
https://www.heraldnet.com/opinion/comment-the-difference-biden-returned-files-willingly/
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