The Biden Classified Documents Fiasco: What Do We Know So Far?

John G. Malcolm / Cully Stimson /

What do we know—so far, at least—about the Biden classified documents situation?  

The information provided to the public has come from people who work for, or are otherwise close to, President Joe Biden and has been filtered selectively through a media largely predisposed to protect the president.

According to Bob Bauer, who is Biden’s personal attorney and a former White House counsel and longtime Democratic power broker whose wife (Anita Dunn) is a senior adviser to the president, the classified documents were “unexpectedly discovered” on Nov. 2 (six days before the midterm elections) by one or more members of the president’s team of personal lawyers.

The documents were supposedly found in a closet in Biden’s former office at the Penn Biden Center for Diplomacy and Global Engagement, a think tank located in Washington, D.C., and affiliated with the University of Pennsylvania.

Bauer claims that Biden’s lawyers immediately notified the National Archives and Records Administration of the discovery.

Each of the attorneys or non-lawyers who discovered those documents is now a fact witness in the investigation, which itself could become awkward if not legally troubling for Biden, depending on what the special counsel recommends.  

It’s been reported that the University of Pennsylvania received more than $30 million in donations from anonymous Chinese donors shortly after the Penn Biden Center was established in 2017. 

On Nov. 4, the National Archives Office of Inspector General notified the Department of Justice of the discovery. The FBI commenced an investigation five days later, and the day after that, the Justice Department notified Biden’s lawyers that it is looking into the matter. 

On Nov. 14, John Lausch, the U.S. attorney for the Northern District of Illinois and an appointee of former President Donald Trump, was tasked by Attorney General Merrick Garland with conducting a preliminary investigation.

On Dec. 20, Biden’s lawyers informed Lausch that they had found a “small number” of additional classified documents in a storage space in the garage of Biden’s private home in Wilmington, Delaware, where he keeps his 1967 Corvette Stingray.  According to Bauer, the Justice Department took possession of those documents the next day. 

On Jan. 5, Lausch briefed Garland about his preliminary conclusions and recommended the appointment of a special counsel.

On Jan. 9, after the story broke about the discovery of classified documents at the Penn Biden Center, the White House acknowledged the matter, and Biden stated that he was “surprised” to learn about the discovery and claimed not to know what was in the documents. 

Neither Biden nor the White House mentioned the classified records that were found in his home until Jan. 12 after media outlets began reporting on that discovery.

At that time, the White House acknowledged the discovery and added an additional page with classified information that it said was “discovered among stored materials in an adjacent room” to the garage at the home.  The same day, in response to a reporter’s question, Biden said, “by the way, my Corvette is in a locked garage. It’s not like it’s sitting out in the street.”

Also that same day, Garland appointed Robert Hur, whose legal career is detailed below, as a special counsel to lead the investigation into the matter.

On Jan. 14, the White House issued a statement that yet another five pages of classified information had been discovered in a storage room adjacent to Biden’s garage within hours after the statement it had issued on Jan 12. Biden has described the adjacent room as his “personal library.”

Robert Sauber, another attorney working for Biden who claims to have the requisite security clearances, has stated that he made this subsequent discovery and that the attorneys who made the initial discovery in the storage closet stopped their search immediately after they found the documents because they did not have the requisite security clearances to review classified material.

Sauber also claims that all of the recently discovered documents “were not the subject of any previous request or inquiry by the Archives.”

Biden’s attorneys further claim that they also searched Biden’s second home in Rehoboth Beach, Delaware, but did not find any classified documents at that location.

It has been reported that some of the documents are labeled “Top Secret” and include briefing documents and intelligence reports involving Ukraine, Iran, and the United Kingdom.

Assuming that all of that is true, there are still a lot of unanswered questions. Not only should the special counsel delve into these questions, but Congress should as well.

Those questions fall into three broad categories: timing, access, and damage assessment.  

Timing

Access

Damage Assessment

Other Issues

The biggest question in terms of a potential criminal prosecution, of course, is whether Biden knew the documents were there, the same question that was asked about former Secretary of State Hillary Clinton about the information residing on the server that was installed at the home she shared with former President Bill Clinton in Chappaqua, N.Y. 

So far, Biden is denying this.

What is classified information and what is the danger of improper disclosure?

Information can be classified at different levels: “Confidential,” “Secret,” “Top Secret,” and “SCI.”

Each label is supposed to convey the level of harm that could reasonably be expected to occur if the information is disclosed without authorization, as follows: “Confidential” (“damage to the national security”); “Secret” (“serious damage to the national security”); and “Top Secret” (“exceptionally grave damage to the national security”).

“Sensitive Compartmented Information” describes classified information that is derived from or relates to sensitive intelligence sources, methods, or analytical processes.

Additionally, some “Top Secret” information is additionally categorized as “Special Access Programs,” a category that limits access to a small group of top military and intelligence officials.

Classified information can reveal sources and methods that we utilize to gather intelligence. It can reveal human assets that cooperate with us in other countries, which can imperil their lives.  It can reveal sensitive information about our technological capabilities or our plans to counter the activities of groups and countries that may mean us harm. 

Countries may be cooperating with us but, for political reasons, they would not want others to know that they are cooperating with us. Disclosure of the fact that they are cooperating with us against common adversaries and of the extent of that cooperation may cause them to cease cooperation and may disincentivize others from cooperating with us.

And there is no question that presidents and vice presidents have access on a regular basis to the “crown jewels” of classified information.

What are the penalties for mishandling classified information?

Various federal laws, including the Espionage Act, make it a criminal offense to remove, divulge, or destroy classified information either intentionally or “through the exercise of gross negligence.” Violations can result in imprisonment for up to 10 years plus hefty fines, but if someone is convicted of espionage, the potential penalty is death.

Several public officials, including retired Army general and former CIA Director David Petraeus and former Clinton National Security Adviser Sandy Berger, have pled guilty to charges of unlawfully removing classified documents. 

However, more recently, then-FBI Director James Comey gave Hillary Clinton a pass (a decision which should have been made by the Justice Department, not the FBI) even though he stated at the time that Clinton and her State Department colleagues “were extremely careless in their handling of very sensitive, highly classified information.”

Comey found it was “possible that hostile actors gained access to Secretary Clinton’s personal email account,” but still he concluded that “no reasonable prosecutor would bring such a case.”

How Has Biden Responded?

In a word: poorly. 

His answer about the documents’ not lying in the street is the worst answer we have heard since Clinton—who had her own issues with the misuse and improper disclosure of classified information—said “What difference, at this point, does it make?” during her congressional testimony when asked about the events leading up to the tragic events in Benghazi that led to the deaths of Ambassador Christopher Stevens and three other Americans. 

Moreover, Biden has been justly criticized for appearing like a hypocrite, given his reaction to the Mar-a-Lago raid when he expressed incredulity, telling Scott Pelley on CBS’ “60 Minutes”: “How that could possibly happen, how anyone could be that irresponsible? And I thought, what data was in there that may compromise sources and methods. By that, I mean, names of people helped or et cetera.”

People who live in glass houses should not throw stones.

Is a Special Counsel the Same as an Independent Counsel?

No, it isn’t. 

But before explaining the difference, let’s pause for a moment to reflect how bewildering it is that currently there are two special counsels—Jack Smith and Robert Hur—who have been appointed by Garland to investigate the former president and the current president, respectively, who ran against each other in 2020 and may be doing it again in 2024, for the mishandling of classified information.

In the aftermath of the Watergate scandal, Congress passed the Ethics in Government Act of 1978, which created independent counsels who would be appointed by members of the judiciary and would act independently of the Department of Justice.

The law was challenged and ultimately upheld by the Supreme Court in 1988 in Morrison v. Olson, despite a vigorous dissent by then-Justice Antonin Scalia, who argued that the law was unconstitutional because the decision about whether to prosecute someone is an exercise of “purely executive power” and that the law deprived the president of his “exclusive control” of that power, adding, “I fear the Court has permanently encumbered the Republic with an institution that will do it great harm.”

In 1999, after presidents of both parties had been subjected to prolonged investigations by independent counsels, Congress decided it had had enough and allowed the law to expire.

A special counsel is a prosecutor appointed by the attorney general (or deputy attorney general if the attorney general is recused) to conduct a criminal investigation of a person or matter. While special counsels have traditionally operated with a degree of autonomy not exercised by other federal prosecutors, they are appointed by and ultimately supervised by the attorney general, an executive branch official. 

The applicable regulations provide that, “[t]he attorney general … will appoint a special counsel when he or she determines that criminal investigation of a person or matter is warranted” and that an “investigation or prosecution of that person or matter by … the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances” and “[t]hat under the circumstances, it would be in the public interest to appoint an outside special counsel to assume responsibility for the matter.”

Who Is Robert Hur?

Hur, a graduate of Stanford Law School, is a partner at the prestigious firm of Gibson, Dunn & Crutcher. He clerked for then-9th Circuit Court of Appeals Judge Alex Kozinski and for then-Chief Justice William Rehnquist. He has had a distinguished career, having served as a special assistant and later counsel to the then-assistant attorney general in charge of the Criminal Division, Chris Wray, an assistant U.S.  attorney for the District of Maryland, a principal associate deputy attorney general under Rod Rosenstein, and then as the U.S. attorney for the District of Maryland, having been nominated to that position by Trump.

What Should Congress Do?

Congress can, and should, conduct vigorous oversight hearings. While they may be stymied, Congress should do its level best to unearth exactly what happened, how it happened, why it happened, and if there should be any consequences. 

Congress should, at the very least, review how classified documents were handled at the end of the Obama-Biden administration in order to minimize the risks to our national security in the future.

What Does This All Mean?

It’s hard to say at this point. While cases should ultimately rise and fall on the strength of the evidence in each case, there is no question that if Trump (Biden’s past and potentially future political rival) is indicted and Biden is not—just as Hillary Clinton wasn’t—there will be many who will believe that there is a double standard of justice at the Justice Department and the FBI.

That’s not good for the country, as it would further add to the growing perception that there are two standards of justice in this country—one for Republicans, and another for Democrats. 

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