President Biden said Tuesday he was “surprised” to learn that in November his lawyers had found classified documents in his former office at a Washington think tank. No doubt he was equally shocked when more classified docs turned up in his Delaware home.
Yet the tone of the mainstream media seems to be that boys will be boys. Since Biden is being so cooperative with authorities after being caught red-handed, maybe this has nothing in common with Donald Trump’s cache of classified documents at Mar-a-Lago. Or Hillary’s cache on her private e-mail server. Could there be a double-standard?
Biden had some/several/a bunch of classified documents while Trump had hundreds so that’s different. Yes, on Sesame Street four is bigger than three, but with classified documents it is not a meaningful difference. The law is clear: each document is a violation, and there are no discounts for having under a certain number. One classified document is enough to seek an indictment. But let’s not forget about Hillary Clinton, who was allowed not only to carry over 33,000 subpoenaed documents in the form of emails out of secure spaces on her server, but to delete them. Imagine if Biden reported that he and his team had simply deleted whatever they had found, never mind whether Trump had had a bonfire.
Biden’s documents were safe inside a locked closet. Classification law is extremely clear as to how documents must be stored, specifying, for example, how many minutes a safe is expected to withstand an attempt to cut it open. In the case of the Secure Compartmentalized Information (SCI) level of docs that Biden, Trump, and Hillary held, details are written into law and regulation as to what type of room, with what type of door, they are to be stored in. “Closet” does not fit the definition, whether it is at Biden’s place, Mar-a-Lago or Hillary’s home.
Nobody saw the documents. Maybe it wasn’t to standard, but they were kept under lock and key. No blood, no foul. Really? The reason all those laws and regulations regarding classified material exist is to safeguard them absolutely, so arguing whether the cleaning crew would have had access to them does not cover it. Marines guard these documents 24/7 in the equivalent of a bank vault deep inside the White House. With Hillary, an unclassified, insecure, out-of-the-box email server connected to the internet meant any hacker with moderate skills, including those assigned to attack her official trips to China and Russia, presumably had full access.
Biden’s documents were just old briefing notes, nothing so important. If the documents were labeled Top Secret or SCI when they were created, then that was their classification, no matter what we think of the contents today. The law is clear that arguing the level of classification after getting caught is not a viable defense strategy, and retroactive declassification is not an option. “The documents were not important even though they were classified” is not any better.
Biden cooperated with the Justice Department and National Archives while Trump didn’t. It is almost always taken into account at sentencing whether the perp cooperated with law enforcement, and sometimes a reduced sentence is in order. But there is nothing in the law (any law) which says if you cooperate after getting caught, then whatever you did was not a crime. And again look at Hillary — her response was to electronically shred (Bleachbit) all the documents in her possession and then destroy the hardware they had been stored on. And no brownie points to an MSM that seems to be trying to present Biden’s cooperation as sign of responsibility — after the fact, of course.
Maybe some of the documents were not clearly marked classified. This one is included for historical purposes because Hillary made such a claim; Biden and Trump have not. Documents are given a classification based on their content and the sources of that content. The marking itself (e.g., Secret) just sums up what there is to say about the content itself. If you remove the Secret moniker by retyping things (as appears the case with Hillary) or just tearing off that part of the document, it does not change the classification.
A matter of trust. Trump, of course, saw his home raided by the FBI in a frantic search for more evidence, with the alleged documents splayed on the floor and photographed like TV drama crime scene evidence. In the Biden and Hillary cases, it appears the lust for evidence is not quite as strong. Note that the Biden documents were found the day before the midterm elections, when the story would have been political dynamite, and held until two months later when they were presented as a nothingburger. Why did the Biden Justice Department hold the news for so long? Why did they wait until Republicans had announced a possible Church Committee-style investigation to show how clean-ish everyone’s hands are, cooperating and all?
Fun fact. Presidents are allowed to declassify any document while in office, and Trump has issued a disputed claim that before leaving office he declassified all the documents the FBI found when it searched Mar-a-Lago in August. The same privilege of broad declassification does not apply universally to vice presidents (Biden’s classified documents are from his time as VP) or secretaries of state.
Attorney General Merrick Garland on Thursday appointed a special counsel to look into the Biden case just as he did with Trump. Arguments from journalists and pundits that the Biden and Trump cases are different ignore that those differences have no meaning in the law itself and are superficial, appearing to be a big deal to those uninformed as to how classification works, a false unequivalency.
Given the real, legally meaningful similarity among the three cases, where will the standards of justice fall this time? As a nation of laws, need we so often test who is above the law? The point is that if the FBI is going to take similar fact sets and sit on one while aggressively pursuing another, it is partial and political. Any further action against Trump must address why Hillary was not searched and prosecuted herself, and why not Biden as well. Fair is fair, after all.