Jan 12, 2023

Biden's classified documents.

A new batch of documents was discovered in his Delaware garage.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 13 minutes.

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Today, we're covering the classified documents found at a Biden think tank, and the latest news about a batch of documents discovered in his Delaware garage. We've also got a reader question about Democrats and the House Speaker race. 

See you tomorrow?

Editor's note: We observe bank holidays, so we are off on Monday for Martin Luther King Jr. Day. If you want to get our Friday edition tomorrow, be sure to subscribe. Otherwise, we'll be back in your inbox on Tuesday.


Quick hits.

  1. House Republicans launched a probe into President Biden and his family's businesses. Separately, House Republicans are asking former Twitter employees to testify at a February hearing. (The investigation)
  2. Nassau County GOP officials are calling on Rep. George Santos (R-NY) to resign after fabricating critical elements of his resume. (The calls)
  3. Former White House press secretary Sarah Huckabee Sanders was sworn in as Arkansas's governor, becoming the youngest governor in the country and one of the highest profile Trump alumni in elected office. (The win)
  4. Russian President Vladimir Putin is replacing a top military commander in Ukraine three months after he placed him in the job. (The replacement)
  5. Rep. Barbara Lee (D-CA) announced plans to run for Sen. Dianne Feinstein's Senate seat just days after Rep. Katie Porter (D-CA) threw her hat in the ring. Feinstein is yet to announce her retirement. (The announcement)

Today's topic.

Biden's classified documents. On Monday, CBS News reported that approximately 10 classified documents were found at President Joe Biden's former office at the Penn Biden Center for Diplomacy and Global Engagement in Washington, DC. The documents were from Biden's time as vice president and were discovered by his lawyers in a closet on November 2, just days before the election. Biden used the office from mid-2017 until the start of his 2020 presidential campaign. His lawyers notified the Department of Justice in November, and then turned the documents over to the National Archives the next day.

Biden's lawyers say they found the documents when they "were packing files housed in a locked closet to prepare to vacate office space at the Penn Biden Center in Washington, D.C.," according to Richard Sauber, special counsel to the president.

Then, on Wednesday, Biden's aides found more classified documents at a separate location, according to an NBC News report. Since November, after the discovery of the documents at Biden's think tank, aides have been searching for classified documents in other locations he used, according to NBC. At least one batch of additional documents has been found in Biden’s Wilmington, Delaware, garage. More details are still emerging.

"The classification level, number and precise location of the additional documents was not immediately clear," NBC News reported. "It also was not immediately clear when the additional documents were discovered and if the search for any other classified materials Biden may have from the Obama administration is complete."

Biden told reporters he was "surprised" by the discovery and didn't know what the classified documents pertained to. The Chair and Vice Chair of the Senate Intelligence Committee have written to the Director of National Intelligence requesting access to the documents and a damage assessment by the intelligence community, the same process the Senate intelligence committee employed after classified documents were found at Mar-a-Lago earlier this year.

Attorney General Merrick Garland asked John R. Lausch, a Trump-appointed U.S. attorney for the Northern District of Illinois, to review how the documents ended up in a closet at the think tank.

Last year, former President Trump's home residence was searched by FBI agents who found over 100 documents with classified markings despite having been subpoenaed for their return by the Justice Department. He is now the subject of a criminal investigation for the handling of those documents, some of which were marked "top secret." Special counsel Jack Smith was appointed to head the FBI's investigation. You can find our coverage of that story here.

Today, we're going to take a look at some arguments from the left and right, then my take.


What the left is saying.

  • The left has focused on the differences between Biden’s documents and the Mar-a-Lago case.
  • Many point to how Biden's team immediately reported the discovery and turned over the documents, while Trump's team did the opposite.
  • Some say Biden still needs to be investigated in the interest of fairness and security.

In The New Republic, Prem Thakker said this situation "is nothing like" Trump's.

"The classified documents were discovered by Biden’s personal attorneys in his former office at the Penn Biden Center in Washington, D.C. Fewer than a dozen documents were found, with CBS reporting the number at roughly 10. It is unclear what the documents contain and how sensitive they are," Thakker said. "CBS News reported the documents do not contain nuclear secrets. On the same day the attorneys found the documents, the White House counsel’s office notified the National Archives. The documents were handed over the next morning.

"Meanwhile, recall that the FBI’s raid on Mar-a-Lago came after numerous attempts by the government to retrieve documents from Trump," Thakker wrote. "The raid uncovered droves of documents that included documents from the CIA, NSA, FBI, and materials that described a foreign government’s nuclear defense capability. Overall, the government has recovered at least 300 classified documents since Trump left office; again, Biden’s team themselves actively returned the roughly 10 such documents that they found... Based on what we know so far, the number of the documents in question and the responses by the pair are radically different—so both cases indeed warrant different treatment."

In MSNBC, Jordan Rubin said Biden "isn't on the same legal planet" as Trump.

"Indeed, if the Biden camp’s explanation is true, then it’s immediately obvious that there’s a difference between the Biden and Trump situations, just from a common sense standpoint, because a recurring theme in the Trump investigation is his failure to turn over documents to the government after being asked for them, while Biden didn’t even have to be asked," Rubin wrote. "As it turns out, there’s legal significance to that common sense point. Take one of the potential crimes with which Trump may be charged: retention of national defense information under Title 18 of the United States Code, section 793(e).

"Specifically, that law can be used against a person who 'willfully retains' such material 'and fails to deliver it to the officer or employee of the United States entitled to receive it.' Based on what we know about Biden and Trump, that’s not what appears to have happened with Biden — but it is what apparently happened with Trump," Rubin said. "In fact, Biden appears to have done the opposite of willfully retaining and failing to deliver documents. Relatedly, then, he’s not vulnerable to obstruction charges like Trump is. And even if Biden appeared to have committed a crime — and, to be clear, it doesn’t appear that way — we were reminded during the Trump-era investigation by special counsel Robert Mueller that the DOJ has a policy of not charging sitting presidents."

In CNN, Stephen Collinson said Biden's scandal "eats away" at efforts to hold Trump accountable.

"Biden’s own sharp criticisms of Trump’s handling of secret intelligence are now coming back to haunt him and opening him up to charges of hypocrisy. While each case will be assessed according to its own legal merits, the possibility that Trump would face criminal action for conduct that will – for many voters – appear to broadly mirror Biden might make any prosecution politically unsustainable," he said. In a separate piece, Collinson also wrote: "Fairness and respect for the law dictate that Biden should answer many of the same questions that Trump is facing, regarding whether he was entitled to the records, why they were not previously turned over, whether they were securely stored and how they ended up in his office in the first place.

"Critics will also wonder why Biden didn’t immediately disclose the discovery of less than a dozen documents last fall to the public, given the huge sensitivity of the Justice Department probe of Trump on a similar question," he added. "And the president will be sure to face accusations of hypocrisy given his sharp criticisms that Trump did not take the proper steps to secure classified documents at Mar-a-Lago. Still, even if there are adequate answers to these issues, any distinctions in the severity of the Biden and Trump documents will be obliterated in the political torrent that is already stirring and with conservative media likely to draw false equivalencies between the two cases."


What the right is saying.

  • Many on the right call out Biden's hypocrisy for criticizing Trump, and question why this wasn't reported before the midterms.
  • Some argue this will make it much harder, politically, to prosecute Trump's mishandling of documents.
  • Others concede the differences in the cases, but note some of those differences are beneficial to Trump.

In The Washington Post, Marc Thiessen said if Trump's handling of classified documents was irresponsible, so was Biden's.

"After the Justice Department released a staged photo of classified documents — including some marked 'Top Secret/SCI' (sensitive compartmented information) — which the FBI had spread on the floor of former president Donald Trump’s Mar-a-Lago estate, President Biden was asked on '60 Minutes' what he thought when he saw that picture. He said he wondered 'how that could possibly happen — how anyone could be that irresponsible.' Well, the Justice Department has not yet released a similar photo of the classified documents found in a locked closet at Biden’s private office at the Penn Biden Center for Diplomacy and Global Engagement," Thiessen wrote. "But CNN reports that some of the Biden documents, like Trump’s, were top secret and bore the marking ‘sensitive compartmented information’— indicating the information was derived from our most sensitive intelligence sources.

"How could anyone be that irresponsible?" he asked. "The classified documents — which reportedly were found in a manila folder labeled 'personal' — were not just kept at the Penn Biden Center’s D.C. office. That office opened on Feb. 8, 2018 — more than a year after Biden left office. So, where were they kept before then? Who had custody of them and under what conditions were they held? When it was discovered that Trump had classified documents at Mar-a-Lago, critics said his holding them at his private club threatened national security... Well, what about the Penn Biden Center? It hosts classes for college students at its D.C. office and has participated in a joint program funded by the Japanese government. Did any of these classes include foreign nationals?... Maybe the Times will now give us a 3D model of the Penn Biden Center, too.

In Fox News, Gregg Jarrett said this could "end the case" against Trump.

"Scratch another undoable item off Attorney General Merrick Garland’s bucket list. He can forget prosecuting former President Donald Trump for taking presidential records with him when he departed the White House," Jarrett wrote. "It turns out the attorney general’s boss, Joe Biden, did the same thing when he left the Obama administration. Glaring hypocrisy aside, it would be difficult to justify criminally charging one president while turning a blind eye to the other. Legally, it would boomerang. Politically, it would be poisonous. Monday’s revelation that classified documents were found in a private office previously used by Biden blew a cannon hole in any potential case against Trump.

"If Garland is foolish enough to proceed anyway, the former president could assert selective prosecution as an affirmative defense. No one else has had his home raided by the FBI or faced criminal indictment. But more broadly, Trump’s lawyers would argue that the plague of wayward documents is a common occurrence during hasty presidential transitions. Outgoing presidents don’t personally pack up their own papers and belongings," Jarrett said. "As I pointed out in a column last summer, during the last 60 years materials have been erroneously categorized and/or misplaced in nearly every administration. Transfers rarely run smoothly. That doesn’t mean a crime occurred, even where classified records end up in the wrong place. Disagreements over custody can be protracted but are usually resolved amicably."

The Wall Street Journal editorial board said that the gods scripting America's politics "sure do have a sense of humor."

"Not even George Santos could make up this plot twist," the board quipped. "The documents discovered in Mr. Biden’s possession include 'intelligence memos and briefing materials that covered topics including Ukraine, Iran and the United Kingdom,' CNN reports... News analysts are cautioning that this apparent mishandling of material is different from Mr. Trump’s retention of hundreds of classified documents at his Mar-a-Lago home, which ultimately triggered an extraordinary FBI search last year. That’s true as far as it goes. Mr. Biden’s office had many fewer documents, and he wasn’t wrangling with the National Archives for months over his right to keep them.

"On the other hand, Mr. Biden as Vice President had no authority to declassify documents on his own, unlike the President. He also isn’t covered by the Presidential Records Act provision that gives former Presidents access to documents from their presidential years in cooperation with the National Archives. Mr. Biden had no authority to hold such classified documents at all in a private office," the board wrote. "None of this is to say that Mr. Biden should be prosecuted, despite the Justice Department investigation. But it is a sauce for the gander political moment, and it certainly does bear on whether Justice can fairly prosecute Mr. Trump for similar mishandling."


My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. It is meant to be one perspective amid many others. If you have feedback, criticism, or compliments, you can reply to this email and write in. If you're a subscriber, you can also leave a comment.

  • Legally, these cases have very clear differences.
  • Politically, this is terrible for Biden, and it will matter with voters.
  • In both cases, it's clear citizens are treated much differently when it comes to classified documents.

First, it should be noted that most of the commentary above was reported before the latest NBC News story that more classified documents were found in a separate location. I don't think this new piece of information will change the commentary much, but it’s important context.

There are three things here worth addressing: 1) The differences between the cases. 2) The political implications. 3) The media coverage.

First, from a legal perspective, the differences obviously matter here — and yes, the cases are very different. Biden appears to have immediately notified the proper authorities and is cooperating fully in the matter. Trump spent 18 months delaying and (based on the evidence I've seen) obstructing efforts by the feds to retrieve the classified documents that he was holding at Mar-a-Lago. Secondly, Trump had many, many more documents in his possession — roughly 30 times as many, given that over 300 classified documents were taken from him during his year-long fight with the National Archives. Trump is also being accused of trying to relocate and conceal the documents he had in his possession.

What may help Trump is that he was the president. His team has claimed he declassified the documents in his possession. While we don't have evidence (yet) of him following proper declassification processes, he would have had more authority over such documents than Biden had, and (when proper procedure is followed) former presidents are granted access to classified documents under the Presidential Records Act after leaving office. And while we don’t have proof that Trump either followed protocol for declassifying documents while he was in office or procedure for accessing them after he left, neither legal justification would have been available for then-Vice President Biden.

The second element here is purely political. And in that sense, this is terrible news for Biden. He spent weeks criticizing Trump as irresponsible, and the story has been fodder for the Democratic base, which is still salivating to see Trump in an orange jumpsuit. For many Americans who don’t follow politics regularly, the differences in the cases won’t matter much. Two presidents broke classified document rules. One had his house raided by the FBI and is under investigation. The other is in the White House. Any criminal charges against Trump are going to look like selective political prosecution to millions of Americans, and if the DOJ chooses to prosecute, Trump’s retort has now been gift wrapped in gold.

Third, and finally, is the media coverage. One obvious question here is why this story is only being reported now, when the documents were first reported to the National Archives days before the midterms. If Biden’s lawyers returned the documents to the National Archives, plenty of people would have gotten wind of what was going on. My best guess is either nobody from the Department of Justice or the National Archives leaked the story, or a reporter got the story but didn’t run with it. I find the latter scenario very, very unlikely, which makes me think we’re learning about this now because it finally made its way to the press.

I will also say this: When I write about media bias, I often point out that some of the most damaging stories ever written about Democratic politicians have come from allegedly "biased" news sources. For example, a lot of people forget The New York Times broke the story about Hillary Clinton's private email server. Now we have CBS News and NBC News breaking back-to-back stories about Biden. Is their coverage a little softer than it'd be if it were Trump? Maybe. But they are the ones who scooped and reported this, despite often being accused of being in the tank for Democrats.

After the Mar-a-Lago raid, I wrote this:

"1) If it's just a matter of mishandling classified documents, an indictment would blow up in the government's face. 2) There appears to be good cause for the search, based on the evidence available. 3) We still know very little and need to wait for more details... As much as we want the law to apply equally to all citizens, it doesn't and never has. Specifically in the case of handling classified documents, we have seen a huge disparity in how people are charged. In this case, the actual law is even more complex when the person in question has the highest possible authority to manage those documents, as Trump did. Charging a former president over what we know about right now would be unprecedented — and the political blowback monumental."

Now, #1 here is even more true (indicting Trump now after this news would be politically perilous). #2 is still true: Trump mishandled documents and refused to cooperate, and the FBI was justified in searching his residence. #3 is true about this latest story: It's still very early and we still need more information. And the final point still holds: Mishandling classified documents is just different for presidents and vice presidents than it is for citizens. If any of us were government employees and did what Trump or Biden did we'd be in big, big trouble, and this disparity in our laws is worth calling out.

All of that out of the way, here's my take: Get to the bottom of it. Biden, like Trump, should be investigated. We need to know how the documents got to Biden’s office, where they have been, and what they entail. Based on the information we have now, this very obviously looks much less serious than what Trump did, and, through its cooperation, Biden's legal team is very obviously conducting themselves very differently. Either way, I'd be surprised if Trump actually gets indicted, and doubly so if Biden is.

Editor's note: We observe bank holidays, so we are off on Monday for Martin Luther King Jr. Day. If you want to get our Friday edition tomorrow, be sure to subscribe. Otherwise, we'll be back in your inbox on Tuesday.


Your questions, answered.

Q: Why, in your opinion, did Democrats not take the opportunity this Speaker vote presented to angle for a Republican Speaker of their preference? As the vote number approached the double digits it would have been an excellent time to approach someone they feel is a moderate and can work best with over the next two years or even negotiating with McCarthy for concessions of their own.

— Michael from West Chester, Pennsylvania.

Tangle: It's a good question.

With 20/20 hindsight, I think a best case scenario for Democrats would have been jumping in around the third or fourth failed vote and doing one of two things: 1) Getting the blessing of Hakeem Jeffries (whom they voted for repeatedly) to switch their votes to McCarthy, so that they could have made him speaker without him giving up so many concessions to the Republican party’s right flank, or 2) Finding 20 or 30 moderate Republicans and seeing if they could agree to back a consensus candidate, thus either getting someone more moderate than McCarthy in, or scaring the Freedom Caucus into backing off.

But, of course, that's with hindsight. In the moment, I think the reason Democrats didn't do either of these things is that they genuinely didn't know what was going to happen. There was a world where McCarthy's bid really did fail, this entire thing dragged on for weeks or months, and Republicans had to go back to the drawing board and find a replacement. In today's political climate that would have been gold for Democrats, who have already said Republicans can't govern if they can't even pick their own leader.

Or, in a similar scenario, they would have had more leverage when seeking out a potential "consensus" candidate.

The other obvious point is just optics. Democrats voting for McCarthy or another Republican is something that could come back to bite them. Imagine 20 or 30 Democrats pushing through a Republican speaker who then goes on to, say, pass a budget cutting social security. Next election, that Democrat gets a primary challenger, and their opponent can say they voted for a Republican House Speaker who cut social security. Rut roh!

More than anything, I think the uncertainty of the whole situation — and the possibility it could have gotten a lot worse for Republicans — is what froze Democrats in place.

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.


A story that matters.

Qcells, a South Korean solar panel maker, said it plans to invest more than $2.5 billion to build factories in Georgia, making it the largest solar panel investment in American history. The company projects that with the facilities, it will be able to supply about 30% of all U.S. solar demand by 2027. Qcells is hoping to take advantage of tax incentives under the recently passed Inflation Reduction Act to build the new facilities, which will be built about 35 miles north of Atlanta and provide roughly 2,000 jobs to the region. The legislation has "changed the economics of clean energy investment," according to The Wall Street Journal.


Numbers.

  • 93%. The percentage of Democrats who believed Trump had classified documents at Mar-a-Lago, according to a September poll.
  • 39%. The percentage of Republicans who believed Trump had classified documents at Mar-a-Lago, according to a September poll.
  • 300+. The number of known classified documents that were recovered from Trump since he left office.
  • 10. The number of known classified documents that Biden's lawyers turned over.
  • Five. The maximum prison sentence, in years, for knowingly removing classified documents to place them at an unauthorized location, thanks to a law President Trump signed in 2018.

Have a nice day.

Damar Hamlin, the Buffalo Bills player who collapsed on the field during a game 10 days ago, has been discharged from a Buffalo hospital to recover at home. Hamlin fell to the field after making a tackle when he suffered a cardiac arrest. Trainers had to perform CPR on the field, restarting his heart twice before he arrived at the hospital. Hamlin was then listed in critical condition in the hospital for several days before rapidly recovering over the last few days. While he was in the hospital, a fundraiser Hamlin runs for children brought in over $8 million of donations from fans. Now, Hamlin is headed home. ESPN has the story.


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