About those claims of self reporting and transparency from Biden


The more we learn about President Biden’s classified-documents scandal, the less credible are the White House’s claims that he “self-reported” any problems and has been completely “transparent.”

At the very least, Biden’s “self-reporting” claim is exaggerated. To self-report a violation, one would need to notify the agency responsible for regulating it. In this instance, given that mishandling classified information — which includes retaining it in an unauthorized location — violated federal criminal law, self-reporting would entail notifying the Justice Department or its principal police agency, the FBI, of such a breach. But that is not what Biden and his aides did.

To reprise the relevant facts, Biden, for reasons thus far unexplained — although reasons not hard to imagine for a Democratic president facing a new Republican House that has vowed to investigate his family’s lucrative influence-peddling business — decided to have his lawyers pack up his private Washington office at the Penn Biden Center for Diplomacy and Global Engagement. There, on November 2, they discovered a batch of classified documents, including some marked TS/SCI — meaning top-secret, sensitive compartmented information. The top-secret designation is reserved for intelligence whose unauthorized disclosure “reasonably could be expected to cause exceptionally grave damage to national security”; intelligence is branded SCI if its compromise could imperil sources and methods for gathering intelligence.

Biden did not self-report to law enforcement the discovery that this highly sensitive intelligence had been illegally retained in his private office — which, Attorney General Merrick Garland has since conceded, was not an authorized repository for classified information. Instead, Biden’s private lawyers notified the Biden White House. After some deliberations about which the public has not been informed, the White House notified not the Justice Department or the FBI but the National Archives and Records Administration.

The national archives is obviously not a law-enforcement agency. It is merely the records repository of the executive branch. The White House arranged for archive officials to retrieve the documents. It appears the hope was that they would be returned to their proper files and that would be the end of the matter.

The Justice Department was notified not because Biden self-reported. Rather, the archives’ inspector general informed Main Justice. NARA, like most executive agencies, has an IG’s office to keep it on the straight and narrow, including by internally investigating wrongdoing and reporting it to Congress. The IG plainly realized that the inclusion of classified materials in government records returned to NARA from a non-secure location raised the possibility of criminal misconduct, and thus had to be reported to the Justice Department — just as the archives reported potential classified-information violations to Main Justice in early 2022, when former president Donald Trump returned 15 boxes of presidential records that had been retained at Mar-a-Lago and in which the archives discovered documents bearing classification markings.

Had it not been for the IG’s notification, it is doubtful that Biden’s illegal retention of classified information would have been reported to the Justice Department at all. And there is every reason to believe the public would never have been told.

The Biden administration kept a lid on what was a potential scandal for over two months. This was not just a matter of letting the November 8 midterms pass. No administration official said anything about Biden’s illegal retention of classified documents until after CBS News, on January 9, broke the story about the documents discovered in the Penn Biden Center office.

But there’s an interesting wrinkle in that. By January 9, Biden, the White House, the Justice Department, and the FBI all knew that, on December 20, more classified documents had been discovered in the garage of Biden’s Wilmington, Del., home. There was no mention of the garage documents, however, in CBS’s January 9 report (it is probable that CBS did not know, or at least could not confirm, that detail). So when the White House purported to fess up to the American people on January 9 and 10, it confirmed only what was in the CBS report, carefully omitting any disclosure of the equally indefensible garage documents.

We learned about the garage documents only because still more classified information was discovered in Biden’s Wilmington home on January 12 — not long after White House spokeswoman Karine Jean-Pierre assured the public that Biden’s aides had completed their searches of his personal property and had located no other classified documents. At that point, Garland had no choice but to appoint a special counsel to pursue a criminal investigation of Biden — having in December appointed one for Trump, as to whom the Justice Department is not nearly as conflicted as it is in investigating its boss, the president.

Now, it turns out that last Friday, the FBI spent over twelve hours scouring Biden’s Wilmington home and finding still more classified intelligence — astonishingly, some of it stemming from Biden’s decades in the Senate (which ended 15 years ago). Naturally, the administration waited until Saturday evening, when the widely watched NFL playoffs were underway, before releasing that news.

Biden’s flacks stressed that the incident was a “planned consensual search” that again underscored how cooperative and transparent the president is being. In reality, Biden’s team knew the criminal evidence that has mounted to this point gave the special counsel abundant grounds to seek search warrants. In that situation, many criminal suspects consent to searches rather than forcing investigators to apply for court warrants, especially if they hope to seek prosecutorial leniency. And “planned” just means the Bidens knew the search was going to happen, which explains why the president spent a January weekend on the beach in Rehoboth.

There are many things to be said about this scandal, not least in wondering why the Justice Department has waited until now to take basic investigative steps that should have been taken weeks ago. One thing that should not be said, though, is that our “self-reporting” president is a paragon of transparency.

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