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.” 

The timing of the Biden disclosure is intriguing. His lawyers apparently discovered the documents on Nov. 2, after which the administration kept a tight lid on the humiliating news lest it affect the midterm elections six days later — the conclusion of a campaign in which Democrats made Trump and his recklessness the centerpiece, a very effective strategy as it turns out.

Besides that, Attorney General Merrick Garland was obviously aware of Biden’s apparently unlawful possession of classified intelligence when, on Nov. 18, he appointed a special counsel, Jack Smith, to investigate Trump’s unlawful possession of classified intelligence. There was no real conflict of interest in the Biden Justice Department’s investigating Trump; out of political calculation, Garland appointed Smith to project the illusion that he and Biden are detached from any eventual decision to charge Trump, even though Smith reports to Garland and exercises Biden’s executive power.

In marked contrast, there is patently a conflict of interest in the Biden Justice Department’s investigating Biden himself. Yet, Garland has refused to appoint a special counsel for both the new investigation of Biden’s mishandling classified information and the long-pending investigation of millions of dollars of foreign money reportedly flowing into the Biden family coffers — which the media-Democrat complex labels “the Hunter Biden investigation” in order to obscure that the main issue is whether Joe Biden cashed in on his political influence, courtesy of anti-American foreign regimes (most of all China, whose millions backed the creation of the Penn Biden Center, where the classified documents were found).

Garland’s story, which the media apparently accepts, is that there is no need for a special counsel on the Biden documents probe because he has assigned the case to John Lausch Jr., the Trump-appointed U.S. attorney in Chicago. What you’re not being told is that a district U.S. attorney cannot get confirmed absent the approval of senators from the state in question. This means that, in Illinois, Trump’s nominee needed to be acceptable to two Democrats, the powerful Dick Durbin (the second-ranking Democrat in the chamber) and Tammy Duckworth, both stalwart Biden allies. Durbin and Duckworth regard Lausch so highly that they went to bat for him when the Biden White House was purging Trump officials. Lausch is thus the only one of the then-remaining 55 Trump-appointed U.S. attorneys who was not forced to resign.

Garland also knew that Biden’s representatives had reported finding classified documents when, three weeks later, Trump’s representatives reported finding two additional classified documents in a West Palm Beach storage locker to which a government agency (the General Services Administration) transmitted six pallets of boxes of Trump administration records. Garland’s Justice Department reacted by marching into federal court and asking to have Trump held in contempt.

Sounds like politics is not a factor at all here, no siree.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, a Fox News contributor and the author of several books, including “Willful Blindness: A Memoir of the Jihad.” Follow him on Twitter @AndrewCMcCarthy.