The DOJ decided Biden aides without security clearances, rather than the FBI, should conduct searches virtually certain to turn up classified documents.
The DOJ decided Biden aides without security clearances, rather than the FBI, should conduct searches virtually certain to turn up classified documents.
I f only we could indict the Department of Justice for felony mishandling of classified documents.
Attorney General Merrick Garland and his accomplices at the FBI appear to deserve it, at least if an eye-popping Wall Street Journal report published Tuesday has it right. The report harpoons a dubious defense President Biden’s apologists have floated: the notion that Biden did not know about the classified documents he was illegally retaining, notwithstanding that he — not an aide, not a lawyer, but he himself — is the common denominator tying together the multiple locations where classified intelligence has been found (his office, his homes, his garage, his library).
The Journal reports that the Biden team decided to have aides who did not have security clearances search the president’s private residences for additional classified documents after the first batch was found. Perhaps even worse, the Biden Justice Department declined to have the FBI present and overseeing these searches, even though it had abundant reason to know more secret intelligence would be found, as well as a duty to ensure that the bureau both preserved evidence and protected national security.
Top Secret/Sensitive Compartmented Information
According to various reports, the first batch of classified documents was found on November 2 at Biden’s office in the Penn Biden Center for Diplomacy and Global Engagement in Washington. Garland has acknowledged that Biden’s private office was not an authorized location for retention of such intelligence (and nor were the locations in his private residences, where other classified intelligence was later found).
The substance of the first batch has been described only vaguely. The documents apparently trace to the Obama administration, in the period from 2013 to 2016, which is to say they’re records Biden had lawful access to when he was vice president. In that position, he was given significant foreign-policy responsibilities, about which he wrote extensively in a memoir that he seems to have produced while retaining the documents upon leaving office. It comes as no surprise, then, that some of the documents reportedly relate to Iran, Ukraine, and the United Kingdom.
Let’s stop there to make two important points.
First, note that vice presidents are typically permitted to retain their security clearances upon leaving office. Biden, however, had no authority to remove and retain classified information in unauthorized places, nor to transmit or otherwise expose that information to unauthorized people.
Second, some of the documents found in Biden’s office are said to be very highly classified — specifically, at the Top-Secret/Sensitive Compartmented Information (TS/SCI) level. Under federal rules, intelligence is designated top secret — the highest of the three classification categories — only if its unauthorized disclosure “reasonably could be expected to cause exceptionally grave damage to national security.” Beyond that, the SCI designation (which is common to top-secret intelligence) is triggered when the information at issue could compromise deep-cover intelligence sources and/or highly sensitive methods of gathering intelligence that the government needs to keep under wraps.
This has obvious relevance: We’re talking about a potentially catastrophic mishandling of classified information. But let’s consider the less obvious relevance.
Biden apologists have stressed from the start that the president’s private attorneys immediately self-reported their November 2 discovery of classified information. As we’ll see, that’s not quite accurate — they reported it to the Biden White House, and neither they nor the White House reported it to law enforcement. But put that aside for now. The issue is: Why did they self-report? Was it really that they’re just upright people?
Well, documents graded TS/SCI are unusual in that, because of their gravity, U.S. intelligence agencies make an effort to keep track of exactly which officials are given access to such documents and whether they are returned to government-secured safekeeping — think of checking out a book from the library, if you were only allowed to read it in a secure setting. To be sure, Biden should get credit for his aides’ doing the right thing and reporting the violation, rather than destroying evidence of it. Remember, though, they were also undoubtedly aware — especially after Biden’s lawyers consulted with White House officials — that there could be government records showing that Biden had been given these documents and failed to return them. Of course, we can and should wonder why no one in our $67 billion per annum Intelligence Community noticed until recently that Biden still had Obama-era TS/SCI documents; still, the possibility that such records exist would have provided incentive to report the discovery of the documents.
(As for the vast run of intelligence classified below the TS/SCI level, maddeningly, our government does not keep track of it — even in a technologically advanced era when a system for doing so is easy to imagine. This is because far too much information is classified, and a staggering 4.2 million people have been given security clearances, including 1.3 million with top-secret clearances.)
Biden Aides Did Not Notify Law Enforcement
With that as background, let’s move on to the discovery of the documents.
President Biden’s family is embroiled in a controversy involving the peddling of his influence to rake in millions of dollars in foreign money, particularly from Chinese “partners.” His Penn Biden Center was established after tens of millions of dollars in Chinese-sourced funds poured into the University of Pennsylvania. Did concern about such matters induce Biden to have his lawyers, rather than low-level aides, pack up his office? Why, for that matter, did he decide to pack the place up two years into his presidency? We don’t know.
What we have been told is that one of the president’s private lawyers, Patrick Moore, found the documents. The claim from Biden’s team is that there was a “small amount” of them — maybe ten, maybe a dozen. (A precise number has not been provided.) Moore did not report to the Justice Department or the FBI that the Biden team had found classified documents illegally stored in an unauthorized location. Rather, he notified the Biden White House.
We have not been told which Biden officials were involved in deliberations over what to do at that point. The administration’s point-man for providing sketchy explanations appears to be Richard Sauber, a lawyer the president recruited to the White House Counsel’s Office primarily to navigate what the administration expects will be an investigative onslaught by House Republicans. Sauber has indicated that the White House decided to notify the National Archives and Records Administration (NARA) — again, not the Justice Department or the FBI.
Thus, it was not FBI agents who picked up the documents after their discovery; it was officials of NARA, a self-proclaimed “independent” agency — though it’s an executive agency, and one that is already helping the Biden administration stonewall congressional Republicans. Federal law-enforcement agencies did not learn about the discovery of the highly classified information illegally retained in Biden’s private office until the following day, November 4 — i.e., four days before the midterm elections. And this notification to DOJ came not from Biden’s lawyers or the Biden White House, but from NARA’s inspector general.
Given that it is a felony punishable by ten years’ imprisonment (under Section 793(f) of the federal penal code) for an official entrusted with access to national-defense information, such as Biden, to be grossly negligent in mishandling it (e.g., to remove it from government custody, to retain it in an unauthorized place, or to cause its transmission or exposure to unauthorized persons), the Justice Department naturally opened an investigation. DOJ appears to have soft-pedaled this probe as a “preliminary inquiry” or an “assessment,” rather than a full-blown criminal investigation. That, no doubt, is because the main suspect is the sitting president — the chief executive and thus the superior of those who are “investigating” him.
The FBI is said to have opened its inquiry on November 9. Neither the White House nor the Justice Department has explained why, having received evidence of the commission of a serious crime on November 4, the Justice Department and FBI waited five days — i.e., until the day after the midterm elections — to open the inquiry.
DOJ and Biden Agree: Searches Conducted by Non-Cleared Aides, Not the FBI
Note that the Penn Biden Center did not open until February 2018, over a year after the Obama administration ended. So investigators had to know, instantly, that the highly classified documents Biden retained after leaving office in January 2017 had to have been transferred to at least one other unauthorized location before finally landing at Biden’s Penn Biden Center office. In turn, it was reasonable to infer from this knowledge that there could be more documents in other Biden locations.
And sure enough, the Journal reports that, in the days after the Justice Department first learned about the documents, unidentified DOJ officials engaged in discussions with Biden’s legal team (presumably, both his private lawyers and Sauber) about the need to search the president’s other private properties for any additional classified documents. In light of the threat posed to national security and the need to preserve the integrity of the evidence, it was imperative that any such searches be conducted by FBI agents with high security clearances. (Recall that in the Trump classified-information case, a problem arose because the FBI assigned agents whose security clearances were not high enough to review some of the documents seized.)
Yet, although the Biden team and unidentified Justice Department officials are said to have discussed “the prospect of having FBI agents present while Mr. Biden’s lawyers conducted the additional searches,” it was ultimately decided that the bureau’s investigators would not take part. “Instead,” the Journal says, “the two sides agreed that Biden’s personal attorneys would inspect [Biden’s] homes, notify the Justice Department as soon as they identified any other potentially classified records, and arrange for law-enforcement authorities to take them.”
This boggles the mind.
To be fair, we can’t fault Attorney General Merrick Garland for not directing that prosecutors obtain warrants for the FBI to search Biden’s residences. After all, Trump apologists still argue that the Mar-a-Lago search was extreme and unnecessary — notwithstanding Trump’s defiance of a grand-jury subpoena after a year and a half spent ignoring the government’s well-justified demands that he surrender government records. A search of a former president’s home is a drastic step, and a search of a current president’s home — i.e., a search of the homes of the incumbent chief executive, at the direction of his subordinate, the attorney general — would be even more drastic. Plus, even if (as discussed above) Biden’s claims of cooperation are overstated, his less-than-helpful actions over a few days do not approach Trump’s months of stonewalling.
But note: We need to distinguish the end from the means. It was appropriate for Garland to be politically deferential to the president’s status, and therefore to refrain from immediately resorting to search warrants, which are the most intrusive means of acquiring evidence. Nevertheless, as a strict legal matter, the Justice Department did have sufficient grounds to seek a search warrant — i.e., there was probable cause that a crime had been and/or was then being committed, and that evidence of the crime would be found in the locations to be searched. It was therefore essential for Garland to ensure that the classified evidence was acquired by government agents with appropriate clearances. Only such agents could ensure that the evidence was preserved for investigative purposes, and that national security was thus protected.
Prosecutors do not necessarily need to get a search warrant just because they have legal grounds for one. If the subject of the investigation is being cooperative, a search can be consensual (i.e., warrantless, because the subject has agreed to it). In fact, a prosecutor need not even issue a grand-jury subpoena to facilitate the search if the subject is being cooperative. All that said, though, the Justice Department is duty bound to make sure that the search is done by federal law-enforcement agents — in this case, the FBI — when there are grounds to believe evidence, especially classified evidence, will be recovered. There would have been no problem with permitting Biden’s aides to be present and participate. But the search still should have been conducted principally by law enforcement.
This is common sense. Yet top Justice Department officials reportedly opted not to have the FBI participate in searches that DOJ knew the Biden team was going to undertake. And on top of that, the Biden team decided to have the searches conducted by lawyers who did not have security clearances.
Biden has already admitted, through his White House lawyer, that the documents were “inadvertently misplaced.” That is not a defense against charges of gross negligence in mishandling classified information. Consequently, while we can assume that Garland will exercise his prosecutorial discretion to decline to authorize an indictment (a choice DOJ guidance requires in the case of a sitting president), Biden’s main defense if he were facing indictment would be the farfetched claim that he didn’t know or have reason to know classified information was in his possession in multiple locations that were uniquely his, and that he is thus not responsible for the information’s potentially having been exposed to unauthorized people.
How can he now maintain even that dubious story?
Whatever he may have known or not known before November 2, he surely knew as of that date that he was in possession of at least some highly classified information, that he had been for about five years, and that there was reason to believe he was retaining still more classified information. With that knowledge, he arranged to have aides who did not have security clearances — i.e., who were not authorized to possess the documents — search for the additional documents.
Worse yet, Biden’s Justice Department knew the same things Biden knew, and still decided that Biden aides without security clearances, rather than the FBI, should conduct searches that were virtually certain to turn up — and, in fact, did turn up — more classified documents that those aides were not authorized to possess.
What a mess.