Benjamin Wittes of Lawfare thinks not, but cannot guarantee it:
This fact pattern, in which the president’s counsels on their own initiative identify and arrange for the return of classified material, is not obviously consistent with criminal misuse of that classified material—much less by the president himself. So depending on what investigators find, there may be scant evidence that a crime took place at all.
Right now, all we really know is that a relatively small amount of classified material from the Obama era has been found where it wasn’t supposed to be on three occasions and in three locations associated with the period between Biden’s vice presidency and his presidency.
It has to be investigated, to be sure. This kind of mishandling of classified material always triggers a referral to the Justice Department. And it has to be investigated by a special counsel. The regulations are pretty clear about that. But that does not mean it is likely to blossom as a criminal case. Indeed, it’s a most unpromising criminal case.
An unfortunate coincidence, perhaps. I’ve even speculated that the docs were planted, although how that could be accomplished escapes me.
So I’ll be watching and waiting, while ignoring propaganda from both sides.
