Politics or by-the-book? Investigating Biden’s classified documents

More details are emerging about the Justice Department’s investigation of documents marked classified that President Biden retained, apparently illegally, in an office he maintained in Washington, at a foreign policy think tank called the Center for Diplomacy and Public Engagement — established in Biden’s name by the University of Pennsylvania (and thus also known as the Penn Biden Center). As this column was being finalized, it was reported that more documents were found at a second location.

Let’s stick with the first batch, since not much is yet known about the second. The approximately 10 documents in question are dated from 2013 through 2016 — i.e., during Biden’s second term as Obama administration vice president. They are said to have been found along with other files, including some personal Biden family information, in a locked closet in Biden’s personal office. You may have noticed that administration officials and other Democrats generally have refrained from claiming that Biden may not be personally involved in the documents’ transmission to the think tank.

So far, the classified documents have received all the attention. The reporting is thin on what other government documents may have been among the sundry files that Biden’s attorneys were packing when they stumbled on the materials marked classified. According to CBS News, “informed” but unidentified sources say the classified documents “were contained in a folder that was in a box with other unclassified papers.”

I raise the matter of non-classified documents because government records from the Obama presidency are supposed to have been logged with the National Archives, as required by the Presidential Records Act. Although the PRA is not a criminal statute and does not have criminal enforcement provisions, in the investigation of Donald Trump’s retention of government records (including classified documents) at his Mar-a-Lago estate, the Biden Justice Department has attempted to infuse the PRA with criminal penalties.

Prosecutors have done this (including in the warrant they obtained to search Trump’s residence), by applying a penal law — Section 2071 of Title 18, U.S. Code — that makes it a crime for officials to remove government records. In fact, some Democrats have argued that a violation of the statute could be used to disqualify a person from holding public office in the future. (Constitutional law scholar Josh Blackman has explained why this argument is wrong with respect to Section 2071; I’ve explained why it is analogously wrong in connection with Section 2383 of the same federal penal code, notwithstanding reliance on that statute’s similar disqualification provision by the House January 6 Committee in its criminal referral of Trump.)

As for the 10 classified documents, CNN reports that, according to an anonymous source, the Biden documents include “intelligence memos and briefing materials that covered topics including Ukraine, Iran and the United Kingdom.” It also has been widely reported that at least some of them are marked top-secret and classified at the SCI level (sensitive compartmented information). That designation is extraordinarily high because it entails connections to deep-cover sources and covert methods for gathering national-security intelligence. The House Intelligence Committee’s new chairman, Rep. Michael Turner (R-Ohio), made that observation in a letter to Biden’s National Intelligence Director Avril Haines, who was a top intelligence official in the Obama administration. Turner has asked U.S. intelligence agencies to conduct a damage assessment and then inform his committee.

Interestingly, when Biden pronounced himself shocked that Trump could have been so “irresponsible” in retaining top-secret documents in his Mar-a-Lago office, he told 60 Minutes his first thought was that “data was in there that may compromise sources and methods.” 

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