Jan 23, 2023

More Biden classified documents.

Photo: Gage Skidmore / Flickr
Photo: Gage Skidmore / Flickr 

Plus, a correction, reader feedback, and a question about fentanyl.

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: 12 minutes.

More classified documents were discovered at Biden's Delaware home, and we've got the latest on the investigation. Plus, a correction, some reviews from Friday, reader feedback and a question about the fentanyl crisis and efforts to address it.


In Thursday's newsletter, we ran a quick hit that read: "Moderna says its new RSV vaccine is 84% effective at preventing coronavirus in older adults, adding that the data will now be published in a peer-reviewed journal."

Obviously, Moderna's RSV vaccine is for RSV, not for coronavirus. This mistake was brought to you by three years of the pandemic.

This is our 76th correction in Tangle's 182-week history and our first correction since January 10th. I track corrections and place them at the top of the newsletter in an effort to maximize transparency with readers.


On Friday, I wrote about why we should retire the term "conspiracy theory," some well known theories that turned out to be true, and the way many conspiracies are built on very real observations. Some reader reactions:

  • "A+" one reader said.
  • "I have to say this is my most favorite read yet!" another wrote.
  • "Thanks for this — one of my favorites," one said.
  • "I have never so completely disagreed with you!" another responded.

Read the subscribers-only piece here.

Reader feedback.

Last week, I answered a question about the definition of the word "woke" and how it has changed in today's politics. Several readers wrote in to insist that I had omitted a key piece of historical context in my answer, and I think they made some good points. Namely, that the term "woke" has a deeply rooted history in Black activism, dating as far back as the early 20th century. Vox has a good historical breakdown here.

Quick hits.

  1. A gunman who killed 10 people during Lunar New Year celebrations in a Los Angeles suburb was found dead with a self-inflicted gunshot wound. (The story)
  2. President Biden's chief of staff Ron Klain is expected to step down in the coming weeks; he'll be replaced by Jeff Zients, the entrepreneur and management consultant who served as Biden's coronavirus response coordinator. (The replacement)
  3. Protests in Atlanta against a proposed police training facility turned violent over the weekend after police fatally shot a demonstrator earlier in the week. (The clashes)
  4. Arizona Rep. Ruben Gallego (D) is expected to announce his bid for the U.S. Senate in 2024, setting up a showdown with former Democratic Sen. Kyrsten Sinema (I-AZ). (The challenge)
  5. Google says it will lay off 12,000 people, the latest major tech company to announce job cuts. (The layoffs)
  6. The daughter of Democratic House Whip Katherine Clark (MA) was arrested for an altercation with a Boston police officer after allegedly spray-painting an anti-cop message on a Boston landmark. (The arrest)

Today's topic.

Biden's classified documents. We first covered this story on January 12. Hours after we published that piece, Attorney General Merrick Garland appointed a special counsel to investigate Biden's handling of classified documents, creating a historical anomaly where both the current and former president (Donald Trump) are now under simultaneous special counsel investigations.

On Saturday, The New York Times reported that investigators for the Justice Department seized six more classified documents from Biden's Wilmington, Delaware, home. Investigators retrieved the documents after a 13-hour search of the home, according to Biden's personal lawyer. Biden's lawyers invited federal agents to search the home, though details about their negotiations have remained sparse. The documents were from Biden's time as vice president and in the Senate, and it was the fourth time classified documents were discovered in his possession.

The first classified documents in Biden's possession were found on November 2, just days before the midterm elections, at the offices of a think tank where Biden worked shortly after his time as vice president. Biden and his lawyers alerted the National Archives to the discovery, which subsequently informed the Justice Department. Nothing about the discovery of those documents was revealed to the public for more than two months. Weeks after that revelation, Biden’s lawyers discovered several classified documents in the garage at his Delaware home, and the latest search by federal agents produced a half-dozen more, though investigators did not specify where in the home the documents were found.

The investigation into Biden comes just a few months after former President Donald Trump had his private residence in Mar-a-Lago raided by FBI officials. Trump had been in a protracted fight with the National Archives and FBI agents over classified documents in his possession, and has insisted that he declassified the documents before leaving the White House. Trump is under investigation for mishandling classified documents and obstructing the subsequent investigation.

Biden had harshly criticized the former president, though he now faces similar legal troubles. Biden's lawyers have insisted that the two cases are vastly different, noting the length Biden's team has gone to cooperate with investigators, while former President Trump resisted returning any documents.

Today, we're going to revisit this case with new commentary since the last time we covered it. We'll be sharing views from the left and right, then my take.

What the left is saying.

  • Many on the left continue to distinguish Biden from Trump, arguing that Trump intentionally kept the documents and misled investigators.
  • Some say the Biden case should not slow down the prosecution of Trump.
  • Others argue the public can grasp the differences between the cases.

In The Washington Post, Jennifer Rubin said the Biden document case shouldn't hinder Jack Smith's probe into Trump.

"One could easily argue that Biden’s lawyers poorly managed the fallout from their discovery of classified documents at Biden’s office," Rubin wrote. "But their actions do not appear in any way to be an effort to conceal or improperly retain documents. As The Post reported last week, the Biden legal team sought to do everything by the book. Biden’s attorneys 'adopted a strategy of caution and deference, making only limited moves in coordination with federal investigators to determine the number of documents involved, their significance and how they were mishandled...' There is no indication that Biden’s team could have done anything to avoid the appointment of a special counsel.

"Unfortunately, all of this is hard to grasp for the public, which clearly does not understand the fundamental differences between the Trump and Biden investigations. A Quinnipiac poll finds that nearly 40 percent of Americans think that Biden should be prosecuted — despite the absence of any evidence that he even knew that he was in possession of the documents," she said. "Nevertheless, the public’s confusion should not affect the evaluation of special counsel Jack Smith, who is leading the investigation into Trump’s situation. Unlike Biden, Trump presided over movement of the documents; personally went through them; failed to return the documents despite subpoenas and then allowed his lawyers to falsely state that he possessed no more classified documents; and made numerous statements arguing that he was entitled to keep them."

In Bloomberg, Noah Feldman wrote that "the difference is Biden gave the documents back."

"We still don’t know a lot of important facts about President Joe Biden’s retention of classified documents at his Penn-Biden center office and Delaware home. For that matter, there’s a lot we still don’t know about former president Donald Trump’s retention of classified documents at Mar-a-Lago," Feldman said. "What is certain is the legal concept that prosecutors will have to use to determine whether to prosecute either president: intent. The relevant provision of the Espionage Act is fairly clear. It’s a crime if you both 'willfully' retain classified documents and also 'fail' to deliver them 'on demand' to the government official 'entitled' to receive them. The adverb 'willfully' is standard legal language, a close cousin to 'knowingly.' To act willfully, in the legal sense, is to act intentionally, consciously and voluntarily.

"In practice, this requirement of willfulness could very well mean that Trump committed a crime with respect to the classified material he retained, while Biden did not. Consider that Trump, through representatives, allegedly refused for months to return more than 30 boxes of documents sought by the National Archives — a refusal that eventually prompted the FBI to show up at Mar-a-Lago and seize the material," Feldman wrote. "That refusal sounds very much like it matches the language of the Espionage Act, which requires both unauthorized retention of classified documents and the refusal to hand them over. In contrast, according to what we know so far, Biden retained — perhaps by accident — what’s been described as a 'small number' of classified documents after leaving the vice presidency. When the documents were found, his lawyers appear to have promptly handed them over without even having to be asked."

In Slate, Dennis Aftergut said the public can grasp the difference.

"There are monumental differences between the known facts of the Trump and Biden classified document situations, especially for purposes of the criminal law. Mistakes handling and relocating classified documents are common enough to have a name: 'classified spillage.' Without willful intent, there is no basis for prosecution. With it, there is," Aftergut said. "As to the Mar-a-Lago documents, Trump virtually admitted intentionality, asserting through lawyers that they were his personal property. He spent 18 months blocking the government’s attempts to get them back, including by a grand jury subpoena. It took a court-approved FBI search and seizure to reveal the falsity of his lawyer’s denial that any more documents were there and to recover thousands of government documents at the country club.

"It’s not only Biden’s lawyers’ immediate return of the documents that makes his case different," Aftergut said. "The president told the public he was surprised to learn that they were there and was reportedly angry at former aides who packed up his vice presidential papers years ago. To be sure, Republicans are already attacking his denial, asserting that he’s lying. Politicians shorting the truth is hardly unknown. But we are yet to see evidence that Biden had anything to do with the classified documents in storage, whereas the former president has claimed he owned his. So to date, we have intentionality versus inadvertence, obstruction versus cooperation—plain differences in law and ethics."

What the right is saying.

  • Many on the right reject the notion Biden is complying as he says he is.
  • Some call out a "double standard" in the treatment of Biden and Trump by the Justice Department.
  • Others argue that Biden may actually be in more legal trouble than Trump, given the new details.

In National Review, Andrew McCarthy wrote about why Biden actually consented to an FBI search.

"The truth of the matter is that, like most criminal suspects as to whom there is already strong evidence of felony offenses, Biden consented to a search knowing that, if he did not, newly appointed special counsel Robert Hur would apply for a judicial warrant from a federal judge," McCarthy said. "This would promptly have been followed by a compulsory search in which the FBI ended up seizing even more incriminating evidence, thus making the case for criminal prosecution even stronger. That, in turn, would [have put] more pressure on the Justice Department to recommend an indictment... To try to stave off this chain of political disasters, Biden has decided to pose as a dedicated public servant who cooperates unfailingly with law enforcement because he has nothing to hide.

"Don’t fall for it. Team Biden has been playing games for two months," McCarthy said. "A guy who has nothing to hide does not retain high-priced lawyers to pack up his private office, as Biden did with his Washington think-tank digs, where the first batch of highly classified documents was found on November 2. Having lawyers pack up is the kind of thing you do when you’re a Democratic president who raked in millions of dollars from operatives of foreign governments, and when Republicans are about to take control of the House – and use its subpoena power to investigate. The president did not consent to an FBI search of his home because he is unconcerned. He consented to it because he knew law enforcement had more than sufficient evidence to compel a search of his home."

In The Wall Street Journal, Kimberley Strassel wrote about the Justice Department’s "double standard."

"It’s convenient that the White House was able to keep quiet for nearly 70 days after the revelation that Mr. Biden inappropriately retained classified information," Strassel wrote. "The media reported almost immediately in 2022 that the National Archives had asked the Justice Department to examine Donald Trump’s handling of documents and later that the Federal Bureau of Investigation had opened a probe. These unsourced stories contained details only department personnel would know—despite a strict prohibition on discussing or disclosing investigations. In the Biden case, officials managed to keep their mouths shut for months.

"It’s convenient that the Biden news didn’t break prior to the midterm elections. In the Trump case, a torrent of leaks and the FBI raid on Mar-a-Lago inspired Attorney General Merrick Garland to break the policy of confidentiality," she added. "He publicly confirmed the investigation. The first Biden document was found Nov. 2 and the Justice Department knew about it by Nov. 4—four days before voters went to the polls. This time, Mr. Garland scrupulously followed policy and kept silent, allowing Team Biden more than two months to perfect the tidy story of 'inadvertent' handling and 'full cooperation' it later rolled out."

In Fox News, Greg Jarrett said Biden may be in more legal trouble than Trump.

"In Biden’s case, the increasing number of different locations where classified records were found is compelling circumstantial evidence that this was not simply a single instance where a record was 'inadvertently' misplaced. Instead, there are three locations – and counting. This suggests that their placement was both knowing and intentional," Jarrett wrote. "The number of documents is not nearly as incriminating as the number of locations where they were kept without mandated safeguards. But intent is not the only legal standard. Under the law, lesser proof of 'gross negligence' is enough to merit criminal charges. Here, Biden has all but admitted such reckless or extremely careless actions by attributing the wayward documents to inadvertence. Indeed, the word is the literal dictionary definition of carelessness.

"There is little question that Biden’s mishandling of these national security materials was, at the very least, grossly negligent. Malign actors may well have gained access. The president’s son, Hunter Biden, who is under criminal investigation for influence peddling schemes involving foreign entities, had routine and ready access. The elder Biden refused to maintain visitor logs at his home where he has spent much of his presidency, so there’s no telling who else was within close proximity," Jarrett said. "The former president insists he declassified the records before he departed office. The law affords him unfettered discretion to do so. Whether it occurred has not been litigated or otherwise determined. If the materials at his residence were no longer classified, then he has not run afoul of the aforementioned statutes. Biden as vice president did not have the same authority to declassify."

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. You can reply to this email and write in. If you're a subscriber, you can also leave a comment.

  • The story is getting worse for Biden.
  • Legally, I'd still rather be him than Trump.
  • In the public's eye, I think it is going to be a wash.

In our second edition on the Mar-a-Lago search, I wrote that "there's still a lot we don't know, and I do think it looks a lot worse for Trump today than it did five days ago." I think the same thing could be said about Biden here: There is still a lot we don't know, but it still looks worse for him than it did two weeks ago.

Biden's team has leaned into the claim that they "self-reported" the documents and therefore have displayed a tremendous amount of transparency. But that stance is a little misleading. Biden's lawyers reported the documents to the National Archives, not the Justice Department or FBI, and they hoped that the matter would be resolved quietly, without the public ever knowing. And, indeed, if not for the inspector general of the National Archives — whose office notified the Justice Department — it's possible they may have gotten their wish.

Comparing the two cases is a fair exercise. And in the legal sense, I'd still rather be Biden than Trump. Trump is relying on the claim that he was president when he possessed classified documents, giving him full authority to declassify them, and that he used his declassification authority properly. The first part of that claim is true. The second part, as even Fox News's Greg Jarrett put it, still needs to be litigated. Being president doesn't mean you just wave a declassification wand over any classified material you want and get to lock it in a shed in your home in Florida. That is not how this works.

For Trump, there are three problems: 1) He has an antagonistic relationship with the FBI and Justice Department, claiming they are personally persecuting him. That combativeness, which has sometimes been a political tool, is now a vulnerability. 2) He fought tooth and nail to keep the documents, misled investigators, and potentially obstructed the investigation itself by allegedly moving and concealing the documents. 3) At least some of the documents in his possession seemed extremely sensitive, and there appear to have been far more of them. There's no way to avoid that looking worse, and provoking a stronger legal response, based on what we know.

Biden's issues are different: 1) We don't know what exactly he had in his possession — which probably reflects fewer people leaking to the press to damage him. When we find out, it could get worse for him — or better. Either way, though, the uncertainty is unnerving. 2) The documents were in more than one location, and none of them were remotely secure. 3) He had less classified authority, and didn’t have the standing that would have allowed him to claim that he declassified the documents found in his possession. Some in the press have lamely offered a 2009 executive order by former President Obama that tried to confer declassification power to Biden. It's true that the order was signed. It is also true that it may not have been legal. But mostly it’s just irrelevant: Biden is not claiming he declassified any documents that he took with him and stored in his home or office.

I have always been skeptical of an indictment of Trump over the mishandling of classified documents or obstructing an investigation into that mishandling (Trump's greatest legal troubles lie elsewhere). I'm doubly skeptical of Biden ever facing any legal consequences, which would only come after he left office anyway, thanks to longstanding Justice Department precedent not to indict a sitting president. The reality is that the most impactful parts of this story are going to be fought on political grounds, not legal ones.

And in that regard, this just keeps getting worse for Biden. Yes, the public will be able to distinguish some details of intent or obstruction, cooperation or conflict. Biden possessed fewer documents that we know of so far, and is able to claim cooperation. But on the other hand, Biden’s documents have been found at more locations, and he can’t fall back on a presidential declassification argument. When it’s all said and done, a lot of Americans are going to view these two cases as a wash (if they even cared that much in the first place).

Perhaps Henry Olsen had it right when he said the special counsels should just make all the details public and let the public decide. I doubt it'd move the needle much in any direction, but at this point it might be the most evenhanded way to move forward.

Your questions, answered.

Q: Is the fentanyl crisis as bad as we are led to believe by some outlets, and if so, why don't politicians seem eager to address it?

— John from Illinois

Tangle: Yes, I do think it is as bad as the press makes it seem. We can see quite clearly that overdoses are continuing to rise in the United States. And we can also see fentanyl's role. Take this graph from the National Institute on Drug Abuse:

National Institute on Drug Abuse
National Institute on Drug Abuse

More recent data suggests 1,300 Americans are dying from synthetic opioid overdoses every week, on average.

As for politicians being eager to address it, I honestly think they are. But the politics of a resolution, like many other issues, are complicated. For starters, fentanyl is often transported through the border with Mexico, meaning one way to stop it would be enhancing security at ports of entry. That, of course, launches the debate over solutions into the very divisive immigration morass.

Other proposals, like Rep. Dan Newhouse's (R-WA) push to make fentanyl a Schedule I drug (which allows stricter prosecution), have succeeded. But his push to give the Drug Enforcement Agency more money has failed. President Biden, meanwhile, has released fact sheets about how his administration is investing in fighting addiction, supplying overdose-reversing medication, and giving more funding to local law enforcement to address the opioid crisis.

I maintain my position that increased criminalization of drug use is a poor way to prevent proliferation. I think a combination of increased border security and prosecution of drug smuggling along with more expansive addiction treatment and fentanyl awareness programs is probably the best route.

In sum, I think there are a lot of politicians focusing on this, I just think — as usual — they disagree about how best to go about fixing it.

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.

Under the radar.

Black workers, young workers and people on the bottom of the income scale saw the largest pay increases in the last year, according to a new Wall Street Journal report. During the tight labor market, businesses were increasingly handing out raises and more robust employment packages, leading median weekly earnings for all workers to rise 7.4% year-over-year by the end of 2022. That just outpaced the consumer inflation rate of 7.1% in the fourth quarter from one year earlier. But the median raise for Black Americans employed full-time was 11.3%; for 16 to 24 year-olds, it was 10%; for the bottom 10th of wage earners, it was also 10%. The Wall Street Journal has the story.


  • 60%. The percentage of Americans who think Biden acted inappropriately in the way he handled classified documents, according to a new Quinnipiac poll.
  • 22%. The percentage of Americans who think Biden did not act inappropriately in the way he handled classified documents, according to a new Quinnipiac poll.
  • 67%. The percentage of Americans who say they are following news about the discovery of these documents either very closely or somewhat closely, according to a new Quinnipiac poll.
  • 37%. The percentage of Americans who think Biden should face criminal charges, according to a new Quinnipiac poll.
  • 46%. The percentage of Americans who think Biden should not face criminal charges, according to a new Quinnipiac poll.
  • 42.1%. President Biden's approval rating, according to the latest average of polls from FiveThirtyEight.

Have a nice day.

Children with chronic health conditions at Perth's Children Hospital in Australia are getting a new kind of treatment: Surf, sun and fresh air. The program has been put in place permanently after a pilot program for kids with cystic fibrosis found surfing had a positive impact on outcomes for patients. For some kids, the surf lessons act as physical therapy; for others, it is a way to improve their mental health. It also gives kids who are often less likely to participate in team sports or physical activity because of their conditions a new community. ABC Australia has the story.

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Isaac Saul
I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.