Actually it hinges on whether it was with the intent to retain those documents. I mean I don't make the laws and I won't venture a guess either way whether it was or was not with the intent to keep them in this case, but the way the law is worded is that it's criminal of you tried to keep them.
Well, since we know Biden got them no later than 2016 (he got them as vice president under Obama) I would say their was intent to keep the classified documents, wouldn't you? I mean, he had them for 6 years.
