A former New York federal prosecutor suggested Tuesday that former Vice President Mike Pence's discovery of classified documents at his Indiana home – and the widening scope of the Trump and Biden classified material mishandling sagas – show it will be unlikely anyone will ultimately face charges in these cases.

Pence informed Congress on Tuesday that he discovered documents bearing classified markings from his time as vice president in his Carmel, Indiana, home on Jan. 16. On "The Story," former assistant U.S. attorney Andrew McCarthy said Pence's case "underscores that no one's going to in the end … be indicted for this."

"And if we want to get ahead of the curve, I think you and Ari [Fleischer] and I should join together now and call for a Blue Ribbon Commission on the mishandling of classified documents. T]he Washington solution for everything, right?" McCarthy joked, referring to former George W. Bush White House press secretary Ari Fleischer, who joined him on the "Story" panel.

Fleischer argued there is still a big difference between presidents or vice presidents being found in possession of displaced classified information, and a senator having items. Biden's most recent document discovery apparently goes back to his time as a Delaware senator.


Joe Biden, Mike Pence

President Joe Biden, left, and former Vice President Mike Pence. (Samuel Corum, Tom Williams/CQ-Roll Call, Inc via Getty Images)

Following the revelations that classified documents from Biden's tenure as vice president were found at a University of Pennsylvania-linked office he used to use, as well as his Greenville, Del. residence, Pence's team conducted searches of the former vice president's home and the office of his political advocacy group, Advancing American Freedom.

Pence attorney Greg Jacob wrote on Jan. 18 to Acting Director Kate Dillon McClure of the White House Liaison Division National Archives and Records Administration to inform her of the discovery of a small number of papers "containing classified markings."

On "The Story," Fleischer added the discovery of Biden's Senate-era classified material is less easy to play off as incidental. He noted that in the case of presidents and vice presidents packing up boxes when leaving office, it is possible though still inexcusable to have classified information mixed in.


Documents seized by FBI at Ma-a-Lago

This image contained in a court filing by the Department of Justice on Aug. 30, 2022, and redacted by in part by the FBI, shows a photo of documents seized during the Aug. 8 search by the FBI of former President Donald Trump's Mar-a-Lago estate in Florida. On Wednesday, an appeals court lifted a judge's ruling that blocked the Justice Department from using classified records seized. (Department of Justice via AP)

However, Fleischer argued, a senator being found in possession of displaced classified information would have had to intentionally removed it from the SCIF [Sensitive Compartmented Information Facility] in the U.S. Capitol Building.

"I want to separate one issue about president and vice president leaving office where taxpayers pay somebody to pack those boxes," he said. "And what [then-]Senator Joe Biden did, apparently taking a classified document with him from the SCIF that had to be deliberate."

"If somebody else packs your box on your last day … and you have no idea and it goes to Mar-a-Lago or to Wilmington, it could be inadvertent. But how, as a senator, can you walk across the street from your office to the SCIF in the Capitol, get handed a document, put it in your pocket and leave with it?"

"That is deliberate and that's a problem," he said.

McCarthy underlined that Biden's apparent defense of more fervent cooperation with the Justice Department than Trump is irrelevant. Cooperation with authorities can only usually lead to leniency in sentencing, he said – nodding to former Rep. John Ratcliffe's, R-Texas, recent explanation that a bank robber returning stolen cash to the bank still gets charged with theft.


Attorney General Merrick Garland hs named prosecutor Jack Smith as special counsel in Trump's case, and tapped former Maryland U.S. Attorney Robert K. Hur to probe Biden.

Fox News' Kelly Laco conributoed to this report.