“Several Work and Storage Areas:” Why DOJ Likely Doesn’t Trust Biden’s Personal Attorneys
Charlie Savage has a story that — while he doesn’t say it — likely explains why DOJ doesn’t entirely trust Biden’s attorneys on the classified documents and so appointed a Special Counsel.
The currently operative story, as told by Savage, is the following:
- Biden’s lawyers found the Penn Biden documents and interviewed the people who packed the documents
- Based on those interviews, they told DOJ other documents would only be at Penn Biden
- Without telling DOJ (though after they learned that DOJ had started to investigate), “and not because of any new information,” they decided to check that premise by looking at the boxes in Biden’s garage
- On December 20, they told DOJ about the documents marked classified in the garage
- They then decided to search other office areas, this time telling DOJ they were doing so
- When, on January 11, they found a page with classification marks inside one of those office areas, they stopped their searches; FBI would find 5 more pages when they came to secure that single page
But look at this timeline with other dates added:
- Biden’s lawyers found the Penn Biden documents and interviewed the people who packed the documents
- November 4: NARA told DOJ about the classified documents
- November 9: FBI started its assessment
- November 14: Garland appointed John Lausch
- Based on Biden’s lawyers’ interviews of those who packed Biden’s boxes, they told DOJ other documents would only be at Penn Biden
- Lausch interviewed some of the people who packed the boxes
- Without telling DOJ, “and not because of any new information,” Biden’s lawyers decided to check that premise by looking at the boxes in the garage
- On December 20, they told DOJ about the documents marked classified in the garage
- On January 5, Lausch recommended Garland appoint a Special Counsel
- At some point not IDed in Savage’s story, Biden’s lawyers decided to search other office areas, this time telling DOJ they were doing so
- On January 11, they told DOJ about another classified page, possibly inside an office, then stopped their searches
- On January 21, FBI did a thorough search of Biden’s Wilmington home and found 6 additional documents
Biden’s lawyers probably didn’t decide to do further searches until after Lausch started interviewing people. Already, if I were DOJ, I would want to know whether Biden consulted with the people being interviewed, and based on that, realized they needed to do further searches.
But we still don’t know two other things. Savage describes the second space in Biden’s home, which heretofore had been described as the room adjacent to the garage, as “several work and storage areas inside the living area of the house.” Which is to say, we still don’t know whether the January 11 document was found inside a storage space or an office, where documents would be used rather than just stored. Or rather, John Lausch knows that, Savage’s sources know that, but we don’t.
We also don’t know if Biden found out that Garland was going to appoint a full Special Counsel and only then decided to search the interior of the home.
Something led Biden’s lawyers to take more seriously the possibility that documents weren’t just stored at Biden’s home, but used there. And while this all still could be lawyers stepping on their own toes as they try to be helpful, even just based on what we know, from DOJ’s perspective, that toe-stepping would be indistinguishable from Biden’s lawyers responding to learning things they should have been told from the start, which is different from — but not that different from — Trump moving boxes to prevent Evan Corcoran from finding classified documents.
One more detail that is actually fairly damning. Savage describes that the documents at Penn Biden were copies; the originals are stored at the Archives.
One set was believed to be material that might be useful to Mr. Biden for his post-vice-presidential career in public life or teaching, like his speeches and unclassified policy memos about topics he was interested in. Those materials were initially shipped to two transition offices and then on to his office at the Penn Biden Center when it opened in 2018. (The National Archives and Records Administration would keep original copies of the official records.)
If Biden’s office sent originals of the classified documents found at Penn Biden to NARA, it makes their inclusion in documents sent to the policy office far less attributable to a mistake.
Biden’s lawyers have been feeding the press a story about how cooperative they’ve been. But so did Trump’s lawyers. Trump’s story was far more obviously bullshit — in part for the way they spun a claim that by adding a lock to Trump’s storage room, they had made it secure.
Though this line about the Biden search — offered up as proof of extreme cooperation — gets close to lock-on-door levels of spinning.
[T]he Biden legal team invited the F.B.I. to also search every room in the residence — including bathrooms, bedrooms and the utility room, the people said.
There are still key parts of Biden’s story that aren’t being explained, most importantly whether the documents discovered this month inside Biden’s house were discovered in storage or in an actively-used office. If DOJ knows that the difference between the two would be critical information for the public to know, then this story would only further degrade confidence in Biden’s lawyer on the part of DOJ.
This is not about the reliability of lawyers like Bauer. Rather, it’s about whether Biden’s lawyers got information at the start they needed. But if they did not, it means that DOJ can’t just trust, but must verify, everything Biden’s lawyers tell them.
I thought all classified documents had to be read in a SCIF with no notes taken. I wonder how can there be copies made if they are under strict control? I remember Sandy Berger getting into trouble for stealing a classified document at the end of the Clinton administration.
Not all, just certain levels like the SCI subset of Top Secret information. Some offices can be considered SCIFs for documents permitted to the occupant.
To elaborate a bit, I routinely worked with Confidential and Secret documents but never with Top Secret. I always read them at the office and always secured them in approved containers (filing cabinets and safes respectively). It was routine, part of my daily job. But photocopying them, taking them out of the offIce? Hell no. That’s the part I don’t understand. The privilege of position perhaps?
I re-read the executive order 13526 regarding classified documents and found parts of it capricious and recondite. A document can be classified on a whim and then be de-classified by the mere passage of time. The then de-classified document can be re-classified even if it is in the public domain.
I also just read that tank shell launches are classified if they are uploaded to military computers. Every one saw the shell firings but they are classified?
The issue at hand are the curators or archivists requesting return of documents and not getting them back on a timely basis.
I’m no tank driver or armor officer, & am glad that I’m not an archivist or Freedom of Information Act specialist, but I did work with classified material a fair bit over the last ten-plus years of my career, & understand a bit about the classification process. In the tank scenario, the fact that the tank fired one of its weapons would not be classified. But these days, a lot of data could be pulled out of each firing — exact time, range, bearing, type of weapon used, & so forth. I can well imagine that the Army would not want people to know that they used a particular type of munition (high explosive, armor piercing, TOW missile, etc.) in a particular way, & that even though it didn’t take out enemy tanks/pillboxes/etc. in situation X, the munition did the job well in situation Y. That’s how you keep learning how best to use your weapon. To use a historical example, that sort of objective data is what finally got the US Navy’s ordnance people to listen to the guys firing torpedoes at Japanese ships & seeing them run too deep, fail to explode, etc., etc. So yes, there would be good reasons to classify the data that the Army uploads about particular shots or firefights.
Where the passage of time comes into play, you can think about nuclear weapons or code-breaking to see why the gov’t might scramble to re-classify information that otherwise might have gone public after thirty years. We had developed all sorts of nuclear & thermonuclear weapons by 1992, but if somebody started putting their blueprints on the Internet because they were old & mismarked documents, you can bet that DOD, DOE, & DOJ would scramble to fix that classification error. The same goes for cryptography. The Intelligence Community didn’t declassify its “Verona” successes in decrypting Soviet communications from WW2 & its aftermath for decades, & you can bet that plenty of communications & techniques from the time of the Gulf War are still very highly classified.
So even though a lot of stuff about classification can be downright turgid, there can be a sensible method behind the apparent madness. (Maybe not about other madness in this world, but one thing at a time.)
Thank you for your response it enlightened and brought back a memory of a borrower of my bank who was a military contractor. They would relay what the military discussed about how electronics performed in the field. It was years ago and the electronics have since improved, but what scared me was the reported failure rates on torpedoes.
However, it also reminded when Hazel O’Leary, Clinton’s first Energy secretary declassified some nuclear secrets that then the president re-classified.
“If Biden’s office sent originals of the classified documents found at Penn Biden to NARA, it makes their inclusion in documents sent to the policy office far less attributable to a mistake.”
That’s not how I interpreted that paragraph- I read it as Biden’s office sent copies of the UNCLASSIFIED documents to NARA. (But we really don’t know one way or the other.)
“If Biden’s office sent originals of the classified documents found at Penn Biden to NARA, it makes their inclusion in documents sent to the policy office far less attributable to a mistake.”
That’s not how I interpreted that paragraph- I read it as Biden’s office sent copies of the UNCLASSIFIED documents to NARA. (But we really don’t know one way or the other.)
Also still wondering how many classified documents (total) have been found at Biden’s places and whether they were classified when boxed and moved, or did some become classified later? There’s been reports that some handwritten notes by Biden are included. I could see that as an easier oversight than docs marked classified when they first reached Biden’s eyes.
Do you anticipate getting these details when the Special Counsel completes his work?
The process Pence and his team went through with classified documents before leaving office seemed to involve a certain degree of rigor, at least according to reports a few months ago that outlined distinctions between Pence and Trump. Whatever may have happened with Biden’s docs, I’m not sensing the same discipline from the top down. Have there been any reports on the system Biden’s team used before leaving office, if any?
Re: “On January 21, FBI did a thorough search of Biden’s Wilmington home and found 6 additional documents,” Biden’s lawyer, Bob Bauer, said it was “six items consisting of documents with classification markings and surrounding material.” Re: the difference between “six documents” and “six items,” Kyle Cheney notes that it “Could be dozens of classified docs in six boxes. Can’t tell from this.”
Given the wide disparity between Trump and Biden management styles, I wonder how widespread and longstanding is the removal of classified documents from controlled environments to bankers boxes in the garage. The press is struggling mightily to cover Trump in an Invisible Sheild of Whataboutism over this, while ignoring the question of just how classified is classified, anyway.
And how, pray tell, is “the press” doing that? Do you think the constant drip of Biden facts is not relevant or actual news that should be reported?
All fair points. My beef with the press isn’t the timing of the reporting, but rather that the Trump case clearly involves bad faith (at the very least) actions by Trump and his lawyers. We don’t know yet how the Biden case will play out, but some media are making the two cases pretty equivalent. Some media are making a greater effort to highlight the differences that we know at this time.
I also can’t help but wonder if there have been any new developments on the Trump case that have been ignored in favor of reporting on the Biden case, but I suppose we’ll find out sooner or later. Maybe when Woodward has a new book. /s
What’s obvious to me is that Trump is scum and Biden is not scum, (I’m not a huge Biden fan, but he’s far better than the alternative.)
What’s also obvious to me is first, that our government has some kind of problem with securely retaining classified documents. Second, that we have two levels of justice in our society. Consider what would happen to any of us who was found even one classified document in our possession? Third, it’s probably no longer politically possible, since the revelation of Biden’s classified documents, to prosecute Trump for his documents. (Fortunately, there are other things Trump can be prosecuted for.)
Barring some unforeseen revelation, I think there’s no need to say more about this particular issue.
Yes. Reality Winner was immediately taken into custody and convicted for the maximum penalty of 5 years during the Trump administration for releasing documents showing the FBI clearly knew that the Russians messed with the 2016 election to get Trump elected. And now we know that the New York FBI field office leader was participating in keeping that material hidden from the public.
She was not sentenced to the maximum.
If I recall correctly she got a plea deal.
Yes. Not a great one, to be kind, but yes.
I’m wondering if Obama, W Bush, Clinton(s), and Carter have employed lawyers to make sure they have no documents left in their possession that they shouldn’t have. Might be a wise precaution these days.
Carter is safer than the rest; the Presidential Records Act only governs the official records of Presidents and Vice Presidents created or received after January 20, 1981.
Prior to that, it’s a bit of the Wild West with US having little to no leg to stand on.
Whatever Carter has donated to the US government via his Presidential library is safe as the US owns that donation.
Whatever Carter has not donated, the US had no legal right to argue it’s not Carter’s Presidential record.
I have no evidence for this but it still comes to mind whether this classified stuff has been planted. We know Trump was extremely worried about the FBI warrant, enough that he hired lawyers to personally appeal to a non jurisdiction Judge to take a clearly partisan case, not through the normal online application to get Cannon to take Trump’s suit. Given Trump mob like actions and the people he surrounds himself with, Stone, Flynn, Powell and many many others… I’m just seeing a distraction like this would be thought of and be acted on. I hope that possibility is being considered and investigated by the special counsel appointed and the FBI looking for documents. It seems strange to me that now 3 areas and residences have been “raided” on Joe Biden locations, who is working with the DOJ but just one, MAL has been “raided” on Trump’s residences where Trump has stalled them and lied every step of the way. The Biden classified document fiasco is the perfect, (too perfect perhaps) distraction for the was coming Trump indictments for stealing and then obstruction of returning classified documents.
My question is what prompted the initial actions of the Biden lawyers at the Biden/Penn Center to start with ? Why, after all this time were they suddenly looking in a closet ?
They apparently never heard to ”let a sleeping dog lie.”
The Center had closed down and the office was being cleaned out. I expect the lawyers had been asked to go through all the papers to decide what should be kept and what could be thrown out. Part of that would have been to decide what documents were sensitive (not “classified”) and therefore needed special handling.
so CBS just reported that MORE (total 25-30) docu have been found from Biden. Daily Beast reported that Biden’s 2 brothers have profited from the name. GOP I read is asking the SS to check their records for who had access to the residence, as some are saying maybe biden had reasons to worry about his security. I thought they don’t keep records on personal homes. wtf is going on?
Nancy Pelosi was quoted as saying that there are plenty of candidates that can woop (my word, lol) fpotus.
I’m not sure I can take pres biden saying one more time “I’m not kidding around”…I’m tired.
Just stop. We don’t need right-wing talking points here. Your repeating all this without any new information is just amplification of GOP bullshit.
Next time you quote a news outlet, bring a link. Next time you quote someone specific like Pelosi, bring a link. Otherwise shove off with this whining.
P.S. You’ve reverted to your old username which doesn’t meet the 8-letter minimum after telling me you were going to use your real name back in August.
“If Biden’s office sent originals of the classified documents found at Penn Biden to NARA, it makes their inclusion in documents sent to the policy office far less attributable to a mistake.”
You may be reading too much into a clumsily worded sentence. I read it as meaning the original documents are stored at NARA and Biden has copies. I imagine multiple copies are made of most documents with classified information, for distribution to several officials. This is in contrast to Trump’s case, which supposedly involves him purloining the original and only copies of some documents.
For the life of me, I can’t understand why the Dept of Justice doesn’t tell Americans what was in the documents retained by both Trump and Biden. Surely they can describe them well enough for people to evaluate their importance, without posing the “risks to national security” they harp on?
Trump, for example, is supposed to have taken the originals of his correspondence with Kim Jong-Un, important foreign policy documents of which apparently no copies exist. That would be a far more serious offence than having a copy of a widely-distributed intelligence briefing that had accidentally got filed with a bunch of non-classified material. The complete absence of information about what these documents were provides the perfect context for all kinds of hysterical narratives to be spun, and it’s all so unnecessary.
“For the life of me, I can’t understand why the Dept of Justice doesn’t tell Americans what was in the documents retained by both Trump and Biden.”
Because they’re classified. ~eye roll~ We’ve already learned an awful lot about what was in the materials Trump is believed to have. We may not learn about what Biden has over the next two years (at least) because unlike Trump, Biden actually is the president right now.
I also think the indictments announced Monday give you some idea of what *might* be among some of the materials as well though if any are related they compose only a small percentage. Think about it: why would either the DOJ or the White House tell the public the extent to which government has been compromised more than the public already knows?
It’s not difficult to *describe* the contents of a document without *disclosing* them. For example “Trump had the originals of three letters from Kim Jong-Un, of which no copies are known to exist” doesn’t say anything about what’s IN the letters. Just as “Biden had copies of EU correspondence about the Maidan Revolution” wouldn’t reveal anything about their contents. However it would make it plain that the one offence was a serious breach of the Presidential Records Act, whereas the other was almost certainly careless handling of everyday documents already in the hands of the NARA.
And if the existence of the document itself is classified, unlike the letters exchange between Trump and Kim about which Trump blabbered?
Like the insta-declassification of the satellite photograph Trump dumped on Twitter of the failed Iranian rocket test which should not have been declassified, about which the public should never have known?
Keep digging your hole, buddy.
Postscript: It’s a prudent Best Practice to check a site’s About page and comment guidelines before being a dick with contributors/moderators, however hackneyed and obnoxious you may find that recommendation.
YEAH. it was a very rough day. I do better here as a lurker. I’ve been petrified of your wrath dear and I don’t need anymore fear in my life. my dear son keeps me afraid enough w/o adding more. sorry I brought my struggle here…I also don’t ‘do right wing bullshit’.
I recently started a subscription. could you tell me how to cancel? I KNOW I do not meet your intelligence, logic and I really, really don’t need anymore risks. thank you Marcy for your excellent reporting. I hope I will still be able to come here for facts but I won’t comment anymore. Yes, I used my real name starting in August until……..UNTIL I saw my comments started showing up in searches and that’s not good for me. I’ve been using OLLIE since I started coming here but this is the first time you’ve bitched about it. sorry.
thanks.
The Hill, (I know, I know) is reporting that documents, marked classified, were found at Pence’s home last week.
https://thehill.com/homenews/administration/3828327-classified-documents-found-at-pences-indiana-home/
“The National Archives and Records Administration would keep original copies of the official records.” A helluv a lot of people/offices have a helluv a lot of official records they should not have for a helluv a long period of time. . Now that is a process breakdown. Please see National Archives and Records Administration and the CIA, NIA etc. Who was at the desk in the hallway logging documents in and out – who policed the log for outstanding documents. Trump probably beats the rap on process alone.
Before there have even been charges filed, you are WAY out over your skis. Hallway? What hallway? Come on man, dial it back.