Several Missing Details about the Classified Documents at Penn Biden

As CBS first broke the story yesterday, on November 2, some Biden associates discovered around ten classified documents (including some classified TS/SCI) in files from his former offices at Penn Biden. The documents were returned the next day, NARA made a referral to the FBI, and Merrick Garland asked one of two remaining Trump US Attorney appointees to investigate the matter.

Attorney General Merrick Garland has assigned the U.S. attorney in Chicago to review classified documents found at the Penn Biden Center for Diplomacy and Global Engagement in Washington, two sources with knowledge of the inquiry told CBS News. The roughly 10 documents are from President Biden’s vice-presidential office at the center, the sources said. CBS News has learned the FBI is also involved in the U.S. attorney’s inquiry.


Garland assigned U.S. Attorney for the Northern District of Illinois John Lausch to find out how the classified material ended up at the Penn Biden Center. The review is considered a preliminary step, and the attorney general will determine whether further investigation is necessary, including potentially appointing a special counsel.

Lausch was nominated to be U.S. attorney by former President Donald Trump, and he is one of only two current Trump-era U.S. attorneys still serving. The other is Delaware U.S. Attorney David Weiss, who is leading an investigation into the president’s son, Hunter Biden.

Lausch recently briefed the attorney general and will eventually submit a final report to Garland. The review is expected to conclude soon.

The report has generated a lot of insanely bad reporting, including this article from the NYT — with four reporters bylined and two more contributing — that doesn’t even mention a key detail from a recent Alan Feuer scoop (which I wrote about here): that Beryl Howell might yet hold Trump or his lawyers in contempt for failing to return all the classified documents in his possession.

Peter Baker and his colleagues didn’t mention that recent NYT scoop, but it did see fit to quote the former President without fact check. Nor did they note that Biden is not complaining that this is under investigation, whereas Trump has never shut up about it. Indeed, a key part of Trump’s defense has been that NARA had no authority to refer the matter for investigation. So Trump’s embrace of this investigation eliminates a claim he has been relying on in his own defense.

Another amusing difference is that for the entirety of the Trump Administration, Biden continued to have clearance; Biden decided not to continue intelligence briefings for Trump shortly after he launched a coup attempt.

Some outlets, including the NYT, have managed to explain that unlike Trump, the Biden office did not refuse to give documents back — though many, like the NYT, have insane comments about why Biden and DOJ didn’t disclose an ongoing investigation when (among other things) that would violate DOJ policy.

The White House statement said that it “is cooperating” with the department but did not explain why Mr. Biden’s team waited more than two months to announce the discovery of the documents, which came a week before the midterm congressional elections when the news would have been an explosive last-minute development.


Still, whatever the legal questions, as a matter of political reality, the discovery will make the perception of the Justice Department potentially charging Mr. Trump over his handling of the documents more challenging. As a special counsel, Mr. Smith is handling that investigation, along with one into Mr. Trump’s efforts to overturn the 2020 election results and the Jan. 6 attack on Congress, under Mr. Garland’s supervision.


“The circumstances of Biden’s possession of classified documents appear different than Trump’s, but Merrick Garland must appoint a special counsel to investigate,” said John P. Fishwick Jr., who served as U.S. attorney for the Western District of Virginia from 2015 to 2017. “Merrick Garland waited too long to let us know he had opened this investigation,” he added. “To keep the confidence of the country, you need to be transparent and timely.”

But there’s something else missing from the coverage so far: it’s not even clear that the documents had been in Biden’s possession, as opposed to another of his former staffers at the Obama White House. As CBS noted, Tony Blinken was the Managing Director at the start, followed by Steve Richetti.

Secretary of State Anthony Blinken, for example, was the center’s managing director in 2018. Steve Richetti, who now serves as a top White House aide to Mr. Biden, was managing director of the center in 2019.

While Blinken had already returned to the private sector by 2017, Richetti was Biden’s Chief of Staff when they left.

One thing Chicago US Attorney John Lausch has been investigating is how the documents ended up at Penn Biden.

Lau[s]ch’s review will examine, in part, how the documents got from Mr. Biden’s vice-presidential office to the Penn Biden Center.

In other words, it might not even be a Biden thing. It could be one of his staffers — and it could be a more serious issue if someone was found to have intentionally taken documents with them when they left the White House, or was using them in the interim. It could be Richetti who did it, for example (which would be one reason among many not to reveal the investigation publicly before discovering how the documents got where they were).

There will be insane reporting ahead — there already has been.

And virtually none of it will report that Trump is still suspected of hoarding classified documents.

Update: Here’s what Jim Trusty argued on August 30, before Judge Aileen Cannon, about how NARA should not be able to criminally refer the discovery of classified documents in the possession of someone covered by the Presidential Records Act because it is not judicially enforceable.

The existing EO on classification (which dates to 2009) treats the VP as an original classification authority, just like the President.

Update: CNN describes that the contents were mixed in with Biden’s personal items.

Among the classified documents from Joe Biden’s time as vice president discovered in a private office last fall are US intelligence memos and briefing materials that covered topics including Ukraine, Iran and the United Kingdom, according to a source familiar with the matter.

A total of 10 documents with classification markings were found last year in Biden’s private academic office and they were dated between 2013 and 2016, according to the source.

The boxes with these classified records also contained personal Biden family documents, including materials about Beau Biden’s funeral arrangements, the source told CNN.

Update: I meant to show CNN’s correction earlier, but they’ve backed off the claim that the files were stored intermingled with personal items.

The vast majority of the items in the office contained personal Biden family documents, including materials about Beau Biden’s funeral arrangements and condolence letters, the source told CNN. It is not clear if the boxes with classified documents contained personal materials.

159 replies
  1. harpie says:

    Morning Marcy!
    THANK YOU for your casting your keen gaze in this new direction.
    [At the risk of sounding conspiratorial, it’s difficult for me to keep from thinking this sounds like something Project Veritas might have their hands in.]

    I think you meant to write Biden, instead of the second Trump in
    entirety of the Trump Administration, Trump continued to have clearance.

    • harpie says:

      I think this was the first salvo of JORDAN’s new weapon.
      1:13 PM · Jan 9, 2023

      Jim Jordan’s new committee is really about generating GOP propaganda. Republicans won’t be able to reveal much about ongoing criminal investigations. But forcing DOJ to resist is the point. On Fox this’ll become grist for screams of “cover up”: [THREAD][LINK]

      • harpie says:

        Sargent to “mainstream news media”: Don’t get snowed this time.

        You cannot overstate the importance of spectacle to the MAGA right’s overall political project. Much of what this new committee does will be designed to create mere impressions of coverups, of wrongdoings, of all sorts of shady deep state conspiracies.

        That will create immense challenges for the mainstream news media […]

        • harpie says:

          And the accounts of both Ron WATKINS [Q?] and Ali ALEXANDER have been reinstated on Twitter in the past day or two.

        • John Lehman says:

          Hopefully…with the new Congressional majority unable to ‘hold their horses’ and stumbling into battle…this will all play out like Pickett’s Charge and change the course of the war.

        • Wajim says:

          And we should hope for “Stonewall Biden.” Taste of their own bs, says I. They’re gonna lie and scream and wail no matter what the Biden and congressional al Dems do or say. Best defense . . .

        • Ginevra diBenci says:

          My therapist told me that Andrea Mitchell was all over the Penn Biden documents earlier, much the way she was all over Hillary Clinton’s supposed perfidy in 2016. If this is true, NBC needs to nudge Mitchell into retirement.

        • FL Resister says:

          Agree. And this is not the only reason Andrea Mitchell needs to go with Diane Feinstein to a vacation destination outside of DC.

        • Rayne says:

          Not to get all ageist but she’s 76 years old. There are more folks in the pipeline who deserve a crack at this particular job who may be more adept at social media use in reporting than Mitchell is.

        • Matt___B says:

          Which begs the question (borrowing from the Clarence/Ginny situation): is Andrea’s approach to the news influenced by her “best friend” husband Alan Greenspan?

        • Ginevra diBenci says:

          It could be the converse–that is, that her practiced “neutrality” made it possible for her to marry someone with his track record without recoiling.

  2. Vent & Shout says:

    Is anyone in the press going to ask NARA why they waited over a year to refer a non-cooperating Trump to the FBI but instantly referred a cooperating Biden team who self-reported and immediately returned the documents?

    Of course not.

    • Peterr says:

      I would not be surprised if the lawyers for Biden didn’t ask for the referral, so as to clear their client of wrongdoing. “Here are the docs we found, and here’s what was stored alongside them. We do not know how they got there, or who was responsible for them along the way. For the sake of everyone, we ask that you refer this to the DOJ for their consideration.”

    • Scott_in_MI says:

      NARA referred the Trump document case to DOJ as soon as they discovered classified documents in the first tranche of materials from MAL. They did not “wait over a year” for a referral.

    • emptywheel says:

      I hope not. Because everyone in the press has public documents readily available that demonstrates that’s false.

  3. Desider says:

    Which storage closet did Biden have the classified docs in, and how many dozen employees, resort visitors, and residents had keys and/or access?
    Oh wait…

    • Raven Eye says:

      That’s probably not a good basis for comparison. Classified materials must be stored in a container and in an environment (building, security, occupancy, etc.) that is required for the level of that material.

  4. jecojeco says:

    This certainly raises Qs about loose NARA controls. There seem to be a lot of broken custody chains at NARA. I wonder how many unaccounted for documents there are during the trump admin compared to earlier admins, I think trump had sticky fingers for 4 years not just post election loss months.

    How tight are Penn-Biden controls? Certain people would have strong motivation to plant docs here (And I don’t mean FBI!). Normal controls would be set up to prevent theft, not to prevent “planting”. trump Watergate type plumbers at work, umm Stone?

    Lets go to the videotape (there are cameras everywhere!). Just imagine a scenario where trump plumbers are found to have planted documents on Biden at trump’s direction. You know, like trump’s brainstorm to paint Chinese markings on US planes and then bomb the shit out of Russia, that kind of stable genius thinking.

      • Russalnyde says:

        Admitting speculation (forgive me) but this breaking news placed a major bee in my bonnet preventing a good night’s sleep and my brain too is fried.
        TFG attended Wharton/Penn…perhaps cronies amongst alumni with access to Biden-Penn?

      • Wajim says:

        Just say No. And baking is better than frying, Harps. But perhaps you’re right, yet I’ll wait for the evidence to play out

    • Peterr says:

      NARA doesn’t control any govt docs until they receive them at the end of an administration. In Trump’s case, it was obvious from WH document logs and public reporting that there were items that had not been turned over, like the Wonderful Love Letters from North Korea. But this was not a problem with NARAs document controls; they didn’t have responsibility for the docs until January 20, 2021.

      If this current episode points to a problem with document controls, it would be with the White House (WH Office of the Staff Secretary, Office of the VP, or some other office) and not NARA.

      • NatlSecCnslrs says:

        A Youtuber I follow named Beau of the Fifth Column had a really great idea today that I’ve been repeating to any reporters I talk to. He suggested that the EOP should put in place a counterintelligence filter team during transitions to go through all the records that are taken out of the WH to make sure that no classified docs inadvertently get mixed in. It won’t be perfect, since looking for unclassified NDI or inaccurately marked docs would take prohibitively long, but it would get all the obvious marked docs, and that’s nothing to sneeze at. I really like this idea; it’s simple and it’s elegant, and it’ll save everyone involved a lot of unnecessary heartburn.

        • Rayne says:

          It’s an idea worth hashing out; it’d only be as good as the humans who were doing the filtering, though.

          I’ve been wondering if a stamp with an embedded beacon affixed at time of classification might be appropriate, but that also has a lot of downsides.

        • rbba says:

          Ah, the shoe bomber response. Let’s create more levels of security until we have ensnared ourselves in a perfect circle of non-responsibility.

        • Rayne says:

          Look, the average citizen will NOT be inconvenienced by the proposed additional screening of materials at the end of a POTUS+VPOTUS term in office, unlike every flyer traveling out of a US airport who can’t finagle their way with wealth to avoid TSA screening.

          Reviewing your comment history so far here you don’t add to discussions but veer back and forth with comments which could egg on community members. I have to concur with bmaz below about your trolling.

        • Fishmanxxx says:

          I just know that if I take a book out of the library and don’t return it, they know I’ve taken it and I will be levied a fine! I don’t understand why the intelligence agencies can’t better record who has what?

    • Tech Support says:

      Don’t we have enough examples of actual crimes by so-called “certain people” that we can avoid making up silly, bad-TV-episode conspiracies? This is why I avoid Reddit.

    • Silly but True says:

      It’s likely the US government doesn’t even know these answers. The amount of classified documents, especially problematic over-classification of documents has been a serious problem facing the government for decades.

      Obama did the most significant modification in years with the creation of the whole-of-government declassification clearing house.

      But still, these are major problems.

      The problem starts with whomever took them out of WH at least six years ago. But also, that NARA didn’t even know these were missing is also a problem.l that should be fixed.

      • rbba says:

        So much for above responses that NARA has no responsibility because they are unaware of documents. Doesn’t the labeling being parsed mean that the documents have been classified and are known to exist and are therefore ‘tracked’ by NARA?

    • Rayne says:

      Makes me laugh thinking Obama picked up and applied the nature of Cheney’s “barnacle branch” to document classification.

  5. Thomas Paine says:

    Whatever the outcome of this WRT “who shot John”, this points to a second serious breach of both custody and control of TS/SCI documents at the White House. In at least TWO incidents now, SCI documents ended stored outside of an authorized SCIF for years and were not accounted for. This is unacceptable. If anyone else did something so careless and stupid they would be in Club Fed.

    The POTUS, VPOTUS and their staff should not be able to walk out of WH with this kind and of stuff. This stuff should stay in 1000# Mosler safes bolted to the God-damn floor of an authorized SCIF and only be removed for review as necessary, but returned for SCIF storage before COB. This is just a reasonable practice that applies to us mere mortals that have had to deal with this stuff everywhere outside the WH.

      • Rayne says:

        You say this without any intelligence at all about the nature of the documents or how they came to be stored outside of regulation.

        Come on. With +300 comments under your belt here you know better than to do this kind of crap.

        • Epicurus says:

          Someone took classified documents illegally, packaged them up, and sent them to UPenn. It is a push to think someone didn’t know they were classified documents given the markings those documents have. (I was a Registered Publication Officer in the military with Top Secret clearance. Lots of Top Secret stuff. The recent news has TS and SCI material in the Penn files. It is, like, impossible to know that something isn’t classified.)

          I assume Biden didn’t know as Marcy is saying above. But the someone that packaged them up did know. And the reason, most probably, is he/she thought he/she could do so with impunity given their position, that he/she had special status in taking and was entitled to that material for whatever the reason. That is classic RHIP and the spirit in which it was intended.

          It should take the DoJ about five seconds to find out who did the packaging and why classified materials were taken.

        • earlofhuntingdon says:

          I’ll just start my IWC stopwatch NOW, wait five seconds, and the DoJ will have its answer.

    • Rayne says:

      Come on. You’ve been here long enough now to know better than to spew crap. Mosler doesn’t even exist anymore, it went bankrupt and its assets were bought by Diebold, for starters. Diebold isn’t named in regulations regarding storage of classified materials, either.

      We have enough problems with poor reporting which borders on propaganda; we don’t need community members publishing similarly sketchy material.

      Acquaint yourself with the regulations, noting recent updates:

      • Wajim says:

        Wow, what a link. And I’m still trying to figure out how to comply with (relatively) new 8 (?) character user name thingy. Makes me feel old and not hip with the kids, sigh. By the way, how does one comply with that?

    • Daniel_10JAN2023_1137a says:

      When we were working with classified documents at Boeing, many years ago, we had a “secure file cabinet” that weighed 1100 lbs with combination lock and secondary lock that secured a hinged bar that prevented the drawers from opening. It took two people to open, one with a combination, and the other with a key.

      Any time a document changed hands, you got a receipt from the next person to prove they had it and not you. Heaven help you if you lost the receipts. The main classified repository on site, for documents not in daily use, was basically a bank vault. Had guards and everything.

      [Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. We also have a number of community members named “Daniel” or “Dan.” For temporary differentiation the username on this comment will be changed from “Daniel” to “Daniel_10JAN2023_1137a” to indicate the date/time of your first comment. Thanks. /~Rayne]

      • Rayne says:

        First, when was this? Was this from the Obama administration’s 2009 executive order or later? Was it after the implementation of Federal Standard FED-STD-832 in 2002 (see

        Because neither Title 32 CFR 2001.43 nor the subset FED-STD-832 make any reference to the *weight* of the container, nor does 2001.43 make any reference to how many persons are required to open the container.

        And are you sure the the security container’s specifications weren’t Boeing’s?

        The only regulations and specifications we’re going to worry about here are the ones which covered handling of classified materials from 2009 through 2022. Anything else may misinform (or disinform) community members and readers.

        Welcome to emptywheel.

        • GWPDA says:

          Those requirements were DOD global thru 2020, when I left. Those are security safes and are not only fireproof but are so heavy it took 4 SSGs to lug mine down to my office. The safe was under the ultimate control of the Security Officer on site – I could never work the thing and ended up leaving it open in my secured office – which the SO authorised. In any case, as a very senior DOD employee -I- had classification (and declassification) authority within the DOD up to the minute all my section had our little ‘Classified’ stamps recalled. Basically everybody has classification authority in their own tiny worlds. The trouble is that functionally material can only be declassified by the entity that classified it. That works okay in places like DOE or the Bureau of Mines – not so well for material classified by the War Department. I spent a lot of time and energy and ink declassifying ’50s Annual History Reports, but while I could do most of them, there were sections that belonged to DOE and they didn’t have the time or interest. Declassification has got to be the most tiresome activity in the world. Every single page….

        • Rayne says:

          This: “security safes and are not only fireproof but are so heavy it took 4 SSGs to lug mine down to my office” is NOT a specification.

          Stop sharing this crap, it’s observation, not specification or regulation. Did the storage container/system meet FED-STD-832 and Title 32 Sec. 2001.43? That’s all we need to be addressing, whether classified documents have been handled and stored according to the Executive Order 13526, Title 32 Sec. 2001.43, and FED-STD-832.

          Even your declassification had to comply with the applicable regulation at the time, and that’s all that matters — was your work in compliance, Y or N? All the other detail only serves to muddy understanding of already-muddy situations.

          And no, the regulations have changed over time — most notably, Title 32 was last amended 12/16/2022, which it says at the top of the regulation.

        • bmaz says:

          Garland does not get to hand select US Attys for any single case, they have to have jurisdiction. Weiss has because the hard drive was “discovered” in Delaware. Lausch. can be assigned to review, were there to ever be a prosecution, he may not be the guy.

        • Wajim says:

          Ahhh . . . a breath of fresh legal air. Tinged with a Southwestern spice mix. Be hard to come here without you, b, seriously. Best take downs on the web

    • Ginevra diBenci says:

      Biden has said that he had a SCIF at his office post-vice presidency. I believe he was referring to the Penn Biden complex. Can’t remember where I saw this, but it stuck in my head.

      • Thomas Paine says:

        Biden during his remarks in Mexico, said that he had a SCIF in the Capitol Bldg. to fulfill his President of the Senate duties. Apparently during the transition his dipshit staffers packed up his stuff so Willy-Nilly that classified documents were mistakenly moved to another office at UPenn. I seriously doubt that UPenn was ever, in the history of mankind, been authorized to hold classified material. (It’s called a “Facility Clearance” for a reason.)

        At this point someone in Biden’s staff has to held accountable for this before Garland or Smith can indict Trump and ever hope to get a conviction that won’t be overturned. The incompetence on display here is beyond belief.

        • Rayne says:

          Apparently during the transition his dipshit staffers packed up his stuff so Willy-Nilly that classified documents were mistakenly moved to another office at UPenn.

          Where’s your supporting documentation for this claim? “Apparently” isn’t apparent.

          Secondly, you’re conflating the circumstances of Trump’s possession of classified documents with that of Biden and they are not the same. Knock it off.

  6. John McManus says:

    This reminds me of the occasional finds in old archives. Shakespear stuff long forgotten , daVinchi drawings and more turn up in the strangest places.

      • earlofhuntingdon says:

        “Shakespear” was long an established spelling, but, yes, current practice is to end it with an “e”. “Da Vinchi,” on the other hand, was a mob driver in a Soprano’s episode.

  7. HGillette says:

    I wonder if this is one reason why Garland/Smith have held off indicting Trump for what many people consider a “slam-dunk” case of stealing government documents, mishandling classified material, and obstruction.

    Maybe they decided it would be better to get this situation out in the open first. Sure, the circumstances are totally different (openness and cooperation vs. lying and withholding documents), but having this come out after an indictment rather than before would give Trump supporters ammunition to say that “everybody does it”. They will still do that, of course, but this gives the DOJ a chance to differentiate the cases without the heat of an existing indictment.

    I do think that this makes prosecution of Trump more difficult, but not impossible.

    • Rayne says:

      You can do better than this, Hank. Stick to the facts of each case, beginning with not having many facts about the documents and how they came to be there at Biden-Penn, as compared to Trump repeatedly violating classified documents handling regulation in unsecured areas *after being told there was a problem*, and taking them immediately following his exit from office to his private resort.

      As for “everybody does it”: How does that work with speeding on federal highways? Does that excuse work? How about any other crime violating federal regulations? Can you point to one where perps are able to weasel out by making that claim?

    • emptywheel says:

      They haven’t held off. That’s why I raised Feuer’s piece. They’re still trying to get all the docs back.

      • Rugger_9 says:

        I have to wonder about the timing of this release impugning Biden. Digby has another good post on it as well, and until someone can show that Biden actually handled these, it remains something of a nothingburger. OTOH, there does appear to be much clearer direction from Individual-1 about his documents.

        It seems to be a bit of genius that AG Garland asked the two Trump Administration holdovers to look into these reports (docs and Hunter’s laptop, another red herring) since it will be harder to claim bias and make it stick when nothing is found.

        As for the timing we’ll have to see what pops out, but the cynic in me thinks that since this had been burbling around the Chicago DoJ for a while that some burrowed RWNJ leaked to the press to overshadow what Judge ABJ was saying about the case in front of her. As I’ve said, we’ll see but the timing was rather coincidental to permit the GOP to play the whataboutism game.

    • bmaz says:

      First off, there is no such thing as a “slam dunk” criminal trial, and anybody who says that is an idiot. Secondly, the two cases have very little in common and, as Marcy said, there has been no “holding off”. Lastly, no, it does not particularly make prosecuting Trump more difficult, much less impossible.

      • wetzel says:

        Now Democrats will get no political benefit from the prosecution of Trump for whatever crimes associated with the Mara Lago documents. That’s the thing that is now nearly impossible.

        Anticipating criminal prosecutions to solve your political problems is the road to Hell. When trials become propaganda truth becomes fiction.

        So now Biden is guilty too! No. No. This is different in three or four important ways. And now we are back to ‘explaining’, and when you are explaining, now you know you are losing.

        Now that familiar sick feeling, what it means to be a lifelong Democrat. The plot is getting away from us. Maybe CNN will help us straighten this out. Lol. We should be proud we suck at propaganda, but, really, we’re not proud of it.

        • earlofhuntingdon says:

          Watching too much of Chris Licht’s CNN. “Political benefits” are not the only or most important consequence that should follow a legitimate prosecution of Donald Trump. And they would not have been the most important benefits from prosecuting Richard Nixon.

        • wetzel says:

          That’s a good point. I think you mean the affirmation of basic rule of law principles – for Trump to be successfully prosecuted. This will show that the powerful are also be subject to the law, if I am taking your meaning correctly. That would have been a positive result of Nixon’s prosecution, separate and above any political benefits for Democrats.

          The trouble, though, as I see it, is that now we are looking at a future in which Trump will likely eventually be found guilty and not Biden. I think that is likely, but I don’t know that. If that is what’s coming, after these latest revelations, instead of reaffirming fundamental values, Trump’s prosecution will be attributed by many as evidence that Biden is above the law. Instead of finding the path away from fascism, now we’re back on track. Of course I am overly dramatic, but I have a sick feeling about it.

        • earlofhuntingdon says:

          Trump’s trail of probable illegalities is extensive. Biden doesn’t have one. Given how little we know about the documents at issue regarding Biden, he deserves the benefit of the doubt.

          If Trump is prosecuted and found guilty, it would surprise no one. There’s little information available now that suggests a prosecution of Biden is remotely warranted.

        • wetzel says:

          That’s all true, although many will not agree. Half of the country will see Trump being prosecuted and not Biden for the same crime, because it’s simple when two things share a trait to say they are the same thing.

          There is a kind of sacrificial resolution in any guilty verdict. I think for a former President to be found guilty in a court of law, Nixon or Trump, is profound for the country, so this unforced error on Biden’s part is like when somebody spills blood on the altar in a Greek tragedy in the first act. You know the ritual is not going to work.

        • bmaz says:

          Baloney. Conviction or acquittal does NOT depend on opinion polls of one half, or the other, of the country. That is such complete bullshit. It depends on a jury of twelve citizens in a courtroom. Acting like it is dependent on asinine public opinion polls is insulting to the jurors once they are chosen, and is simply gross.

          How many juries have you argued to? How many have you served on in criminal cases? If your answer is greater than zero, did you do your level best to listen to the evidence adduced and arguments made, or did you base it on some nebulous and extraneous public polling you thought you had in your head? If so, did you perjure yourself about that knowledge and how it might affect your consideration? Because that is rarely the basis you blithely allege. Have a bit of respect for the system, else YOU are part of the problem and the opposite of any solution. Blather from the cheap seats is exactly that: cheap blather.

        • wetzel says:

          I’m sorry, bmaz. I’m not expressing myself very well. I’m not talking about the effect of public opinion on the verdict. I’m referring to the effect of a guilty verdict on public opinion afterwards.

          These latest events won’t likely change the former, meaning affect the verdict, but they definitely will change the latter, I think, in how the verdict will be perceived afterwards.

          The effect of a Trump guilty verdict within our society will now be different because Biden is also accused and will be seen as ‘above the law’ whether criminally culpable or not. Instead of a guilty verdict teaching the lesson that nobody is above the law, many will now draw the opposite lesson and see Biden ‘getting away with it’.

          I think this is a very significant problem. There is a deep history of criminal courts as the means of preventing cycles of reciprocal violence and revenge. From a functionalist, sociological perspective criminal trials preserve social order. The trial renders a verdict and ‘settles the issue’. If the ritual is carried out properly, the result is justice, and that is the end of it, but for many people, because Biden is also perceived as ‘guilty’, a Trump guilty verdict can now never be the end of it. This is an overwrought way to say it, but I think it will just start of new cycle of revenge between us and our Republican brothers and sisters. Oh well. Nothing new, I guess.

        • bmaz says:

          Fair explanation. But worrying about that is the epitome of politicizing the justice system and its outcomes. We all constantly decry that in principal, but here we are at the fulcrum point where it really matters. Let DOJ do it right, and the chips fall where they may. Again, worrying and fretting about what the public may, or may not, think at some hypothetical later time is not the measure.

          These are hard issues and problems. We have the worst justice system in the world, except all the other ones. It may be imperfect, and it is, but this is it. Carping about Trump vis a vis Biden is a useless exercise, fool’s errand and one where neither you, I nor likely anybody else really knows enough about to judge yet. People need to chill out.

        • Rayne says:

          It’s not helping. It’s actually 1) wasting community time on hand holding; 2) sucking up space in this thread without adding substantively to the conversation; 3) amplifies right-wing talking points even as it decries them; 4) demoralizes others.

          Let it go, wetzel, do something constructive. You’re giving into the right-wing trap, falling into their frames. Snap out of it.

        • Belyn says:

          Half of the country? No way.

          In calling this an unforced error, you are parroting CNN. But I am yet to see that it is Biden’s error.

        • Stephen Calhoun says:

          One thing about Trump is that he possesses a keen ability to act (and appear) as if he’s committed a crime. This performative tick impacts public perceptions outside the sphere of expert evaluation of legalities and evidence. Sometimes he has acted out being something like a mob boss.

  8. Randy Baker says:

    Really nice point, not clear Biden held the documents, that our nations “finest” journalists managed to miss. Assuming, as likely is the case, that whatever link Biden had to the documents was entirely not criminal, he might be able to submit a declaration under penalty of perjury — even sit for a deposition narrowly focused on what he knew about the documents and when — and then send it on to the Donald proposing he do the same thing — which he will as soon as hell freezes over. Won’t stop the fascists from howling in the wind, but it likely would limit their audience to the 30% plus or minus who are solidly in with insurrection.

  9. Julius Hayden says:

    The revelations in the chain custody will tell us much. Who, Why come to mind.

    [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your second user name; you have previously commented here as “JJ Hayden.” Thanks. /~Rayne]

    • Silly but True says:

      These documents and how they came about in Biden’s possession may date back as far as 2013 or 2014. A post hoc investigation of something nine months old may already be difficult, but now Biden had been out of the WH for that occasion for more than six years, and transition and document organization and moving may have begun as much as seven years ago.

      So we’re talking about getting the story on 10 or so pieces of paper in hundreds filed in multiple boxes.

      Unless these are pretty special, no one’s going to know what happened and Biden and his team probably can’t fill things in at this point.

      A problem as well as feature of US defense information is that neither POTUS nor VPOTUS are an “agency” under the law. The entire executive branch classification system as it has come to be flows out from POTUS executive authority as primarily originating in a series of Presidential Executive Orders.

      There may be normal gaps in their handling special only to POTUS / VPOTUS as result of their position that would get others into serious trouble. That’s okay, insofar as there is not ever a POTUS/VPOTUS will ill intent with respect to the information.

      • bmaz says:

        Ill intent is still at issue as to Trump, no? But, yes people are far too hysterical on the handful of docs in the Biden case.

        • Silly but True says:

          Yeah, possibly.

          In 9 months, I haven’t seen anything concrete regarding whether Trump docs were declassified or not by POTUS prior to Jan. 20, 2021. A fundamental detail to that entire case. So while it appears to be unusual, I’m not going to hold my breath one way or another.

          In the whole of the amount of paper that VP might get in 8 years in office, I’m not too excited about 10 from seven or more years ago.

          It’s only a big deal because it’s been manufactured to be a big deal to sell stories.

  10. N.E. Brigand says:

    As per the new reporting from CNN mentioned in the update at the end here, which says that most of the boxes turned over to the Archives included only personal documents, among which was one envelope containing a mix of 10 classified documents from 2013-2016 and further personal items including some concerning Beau Biden’s funeral arrangements — that would have been late May/early June of 2015 — the impression I get is that these items were probably already comingled in Joe Biden’s office as vice president. I guess we’ll find out eventually.

  11. Pedro Perfecto says:

    Who does everyone think is leaking this and why is it being leaked now? Is there something big happening around the corner?

    My guess is team Biden or DOJ knew this would probably come out during House oversight and they wanted to get out in front and control message.

        • Wajim says:

          Well, spoken, Mr. Spock, and so very true. I’ve been aspiring to that status for over 6 decades, almost there, but I didn’t go to law school, so [weeps pitifully] I just want Trump prosecuted for his numerous alleged/obvious crimes. I’ll take whatever twelve non-corrupted jurors have to say after a fair trial

          [Your change in username worked, but I’ve reverted it. I’ll strongly discourage you from using an email address for two reasons: 1) unending spam, and 2) only dashes and underbar characters are permitted as part of your 8-character minimum. Try again, thanks. /~Rayne]

        • Wajim says:

          Umm . . . huh, what? That is color me confused (which honestly is no achievement). If my username changed it wasn’t me, if only because I can’t seem to figure out where/how to do it (yeah, grew up with dial phones, party lines, and so on). Dash and underbars, but still have never instituted any changes as I have no idea how. And what do I use for an “Email” as requested but an email? Hope you get this and can teach me something new

  12. earlofhuntingdon says:

    Katie Porter over Adam Schiff to replace Diane Feinstein as Senator from California? Absolutely. That both are thinking out loud about running for her place, in the absence of an overt decision by DiFi not to run again in 2024, suggests Ms. Feinstein’s cognitive abilities are not improving.

    Given that she has apparently been in decline for some time, as Froomkin notes, media should put in quotes any statement that “Feinstein announces,” since the announcement is likely to have come from her staff.

        • bmaz says:

          Oh, don’t doubt that at all. And Schiff is certainly bright enough to do the job. Though not sure he would ever get the votes to be Speaker.

        • earlofhuntingdon says:

          Schiff is already feeling the competitive heat from Ms. Porter. Here, he’s whingeing that her announcement is “playing politics” in the middle of a natural disaster. I think he’s really complaining that she announced ahead of him and now he’s playing catch up. Schiff playing the propriety card over this seems lame.

          Moreover, the Dems can’t wait for a tired, just-shy-of-90 incumbent to announce that she’s leaving the throne she’s held onto for thirty years in 2024. Feinstein’s needs no longer match those of California. Two years is already a long time to wait for her replacement.

          Porter’s right: in the middle of a natural disaster, and the political one that is the GOP running the House, California needs an energetic warrior, one more progressive than Schiff. Besides, given the global climate crisis, California may always be in the middle of a natural disaster.

      • Rugger_9 says:

        Khanna is my House rep, and my 2 cents is that he’s an establishment type to a fault, like Steny Hoyer. He has benefited from the opposition in his elections, and willing to be corrected on this point I can’t think of any real change Ro initiated. Porter would be an actual progressive and what the Senate does need, and it would get her out of the risky district. Porter needed to move now because even though she’s not taking PAC money, the PACs weren’t going to fund her campaign anyway.

        I agree with bmaz about Schiff. He’s certainly talented and experienced enough but also has many enemies, probably more than Porter.

        • P J Evans says:

          I’ve heard that his 2020 campaign had some hinky things going on. But he got elected, and his district seems to feel he’s fine.

        • bmaz says:

          Nobody knows that, but it is a possibility. Is that really a concern when getting a kick ass relatively young Senator for the fourth largest economy in the world (which California is) is in play?

        • FLwolverine says:

          I’m with you on this, bmaz. It’s a concern Democrats have to address by the quality of their new candidate and GOTV campaigns, not by holding back a highly qualified young candidate from seeking a (winnable) Senate seat.

        • Rayne says:

          CA-47 is rated D+3. Let’s stop talking about flipping as if it’s a given.

          Based on the 2022 race the question is whether there are Dems in the district who are ready to run since the GOP has ample people who proved ready in the 2022 primary.

          All the more reason why Porter had to announce as early as possible. The Democratic field needs to look at their fundraising capability and available supporters to hit the ground running.



          In the mean time, quit fretting. If you live in or have friends/family in CA-47, touch base and find out how the Democratic field looks, do some nudging if you know of a qualified and interested Democrat.

          ADDER: Folks with ready money could donate to the Orange County Democratic Party earmarking the donations for CA-47 district candidate (since OCDP supports three additional congressional districts besides CA-47). It’d give the party a jump start.

      • Anathema Device says:

        Isn’t the argument against Katie P is that she is in a seat the Dems may not hold without her, while Schiff’s seat is safe?

        To this outsider, they both look like incredibly able replacements for Ms Feinstein.

      • Molly Pitcher says:

        I think she comes to this campaign with less of a target on her than Schiff would have. I would actually like to have both of them as our Senators. Alex Padilla seems to be a perfectly competent person, but perhaps with less of the fire forged in combat that Schiff has exhibited the last few years.

        • punaise says:

          I like Schiff too, but Porter is whip-smart, listens well, and frames things even better. No rich guy / powerful person wants to be on the receiving end of her questions under oath.

          Don’t really have an opinion on Padilla… which maybe reinnforces your point?

        • Wajim says:

          There you are, kid! Mine, too. I’ve been away overseas in very intermittent internet coverage, and too busy to spend time on the net, but now back. Happy to hear from you. If you get a chance, please check out the Mozart for any extra euros or dollars you may have in your breadbasket

        • punaise says:

          Hey there! Interesting: I assumed the Mozart Group was about you know, Mozart-y music stuff, but it appears to be a riff in opposition to the Wagner Group (nasty Russian mercenary force).

          Totally legit?

        • Wajim says:

          Seems to be, but I can’t assure you of that except what I’ve seen in person, which, well seems totally legit. The best thing they do after training the Ukranians to survive combat, is rescue UKR babushkas, kids, and cats from RU rockets on their already half-destroyed homes. Understandable that many of these older folks don’t want to leave but they should. Mozart people just need vehicles, food and med supplies to provide to these people while they plead with them to evacuate with the Mozart team to a safer place away from the front. They take great risks to do this and are f-ing heros in my experience

  13. Frank Anon says:

    I just expect that the weight of investigation will result in a charge or no charge again Trump, and that political speculation about what the unknown “they” may feel is and should be pointless. And the same process should take place for the Biden documents. The rest is noise. For as long as we can enjoy this process, we should

    • John Colvin says:

      “For as long as we can enjoy this process, we should.”
      I, for one, am hopeful that we can enjoy due process far into the future.

  14. datnotdat says:

    Dr. Wheeler,
    Slightly off topic. I suggest you publicize your appearances in other media more prominently. I read, and frequently reread, all you post. I read most comments. I do have a modicum of knowledge on your topics from other sources. Despite all this I still find hearing you speak additionally enlightening. I find myself saying to myself, “Ah, she told me that, and told me that, and that, but now I see all these threads woven together!” I most recently had this soliloquy today, when I found your YouTube interview with Nicole Sandler from the sixth. I knew it was out there, and I’m upset with myself that it took me four days to find it. Any rate, I find your interviews very worthwhile, and additive. You, and you all, rock!

    P.S. lengthened my handle. I couldn’t get its first letter to be lower case, as I wanted. trust my tweets under my old name will be searchable under my new?

    [Thanks for updating your username to meet the 8 letter minimum. I’ve changed the first letter to lower case, let’s see if you can continue with that. I can’t be positive your previous comments as “DAT” will be fully searchable; this is one of the reasons short names have been problematic. /~Rayne]

  15. Troutwaxer says:

    Here’s what I don’t understand: The Dept. of Energy (for example) creates a heavily-classified report on our atomic capabilities. They print 12 copies, each individually numbered and covered with a classification notice, then log the creation of these reports. The reports are distributed, presumably by secure courier, to the President, Vice-President, etc. Before the reports are sent out, they’re logged as being “out for reading” or something similar, and then logged back into the Dept. of Energy’s custody when they’re returned. So who’s in charge of making sure all 12 copies of the report are either returned, destroyed, or appropriately transferred to (for example) the Secretary of State’s secure facility (which should also be logging the transfer.)

    So after some appropriate time period shouldn’t the Dept. of Energy audit their logs, making sure the classified reports are all in the right places? That is, returned, destroyed, or stored in the Dept. of Energy’s secure facility? In theory, “we left this in the insecure, on-a-college-campus, without an SCIF office on an ex-vice-president” stuff just shouldn’t happen.

    So how did it happen and who’s responsible? Multiple classified reports should not go missing in any administration.

    • Rayne says:

      WaPo’s Phil Bump wrote an analytical piece published about 10:00 am this morning. This graf sticks with me:

      At this point, we don’t know much about the Biden documents beyond what his team has made public, which is certainly an important caveat. According to the Biden team’s statement, the documents were found in a locked closet and quickly turned over to the government. What they contain is unclear, as is their current classification level or status. (There are, of course, numerous existing documents that are no longer classified but which may nonetheless still carry classification markings.) One person, tongue presumably in cheek, told CBS News that the documents did not contain nuclear secrets.

      The documents’ current classification level or status is unclear — kept in a locked closet, bearing classification markings, but level and status unclear.

      What if the reason the classifying authority and NARA wasn’t looking for these documents is that they’re declassified but still bear classification markings? What if the records maintained about these records indicated these were declassified but simply didn’t indicate final disposition?

      What if these had been VP Biden’s purview, had been declassified by him (per EO 13526 which says VP has class/declass authority), but he didn’t address closing out the record?

      We simply don’t know enough yet. It does seem odd that CNN went full bore but Fox News as well as MSNBC hung back on reporting. Are there sourcing issues related to this revelation which gave other outlets besides CNN pause?

      • David F. Snyder says:

        Right! I read that one too. The following is from
        DOJ’s FAQ page on classification:


        The intent of uniform, conspicuous and standard markings is to leave no doubt about the classified status of the information. If standard declassification markings are not affixed to declassified records uncertainty is created for cleared holders of the record as to its classification status.

      • harpie says:

        And THAT is why the timing of this information coming to CBS from “two sources with knowledge of the inquiry” is so interesting.

        1/9/23 MCCARTHY’s first full day as speaker

        5:21 PM CBS breaks BIDEN docs story; LAUSCH “recently briefed the attorney general and will eventually submit a final report to Garland. The review is expected to conclude soon.”
        7:15 PM WaPo reports: House narrowly passes rules package

        • Chuck M. says:

          Doubly interesting when we recall it was CBS who released the dubious report on the veracity of the data on H. Biden’s now-sacred laptop. on 11/21. Just after those wily Republicans “secured” their grip on the House.

          Side q for the legals here: Why don’t we hear more about the lack of a clean chain of custody of this laptop? It seems to me, as someone who’s worked in cybersecurity, that without that the evidence is tainted and unreliable.

        • Ginevra diBenci says:

          Chuck, most of the mainstream media coverage of that Hunter laptop story was contained in a WaPo story a few months ago that was (sadly but typically) anonymously sourced to people “familiar with the investigation.” Given that it has since become clear that the source(s) were likely FBI whistle-blowers friendly to Trump, everything about that original story’s putative authority must be questioned–especially what you called out: the highly compromised nature of the laptop itself.

          Now that the ones pushing the laptop story are exclusively GOP frothers, don’t expect to hear much about this–not from them at least.

        • Chuck M. says:

          Right. I get that and I’m not arguing the veracity of whatever they found on it. My question is more general wrt this chain-of-custody thing that the minions lamented wrt the ballots. If a hard drive is found to contain incriminating digital evidence, and its chain of custody is questionable, how admissible would that evidence be? Could it actually be used in a legal proceeding?

          In the case of the laptop, they trotted out an expert to say all the data was original and untouched (right after the Reps won the house where they promise to get to the bottom of the Biden scandal). Even if a so-called expert attests to this, but doesn’t mention it’s questionable origins, isn’t that analysis flawed, at best?

        • Ginevra diBenci says:

          What I’ve read by tech experts about that laptop is that at this point nothing on it can be verified; it’s changed hands too many times since being dropped off at the shop. But what if it could? Any potential charges are already in the hands of the Delaware USA (the other Trump-appointed holdover), with whom HB has said he is cooperating. Comer’s show is not about legal issues.

  16. Ian says:

    Get ready for reporters, editors and producers, etc, to engage in a massive “Hillary-ification” of this story. And subsequently neglect to tell anyone about the former guy’s “struggles with my [sic] classified documents”.

    [Welcome back to emptywheel. SECOND REQUEST: Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. As noted back in August, we also have other community members named “Ian.” Thanks. /~Rayne]

  17. Randy Baker says:

    The NY Times just wrote that the discovery of classified documents in Biden’s office made Jack Smith’s job more difficult. I guess I missed that day in law school, but I don’t see why building a case against Trump, or deciding there is no viable case, is affected by the possibility that Biden engaged in any similar conduct.
    The R’s, of course, will cite Biden’s documents hysterically in attacking Smith, but they would attack him hysterically regardless of whether there were any classified documents in Biden’s office.

    • Silly but True says:

      They are making an “Equal Protection” argument under the Constitution, a clause contained within the 14th Amdt.

      It requires that individuals in similar situations be treated equally by the law.

    • Rayne says:

      Don’t drop that shit in here without a link to a report in a credible journalistic outlet.

      There will be no amplifying fact-free right-wing talking points here, especially in this thread.

        • Rayne says:

          It’s not hard when you make a fucking effort. This post was about the first documents; you dropped in here making a statement about a second batch without any supporting information.

          We expect better here. You could have furnished that link with your first comment.

          And now tell us what critically important details got your pants in a knot from that article that you needed to share it sans link. I personally find it annoying that NBC piece by Carol Lee and Ken Dilanian swings between saying “classified documents” were found and “classification level, number and precise location of the additional documents was not immediately clear” suggesting the documents may not be classified *now*. Which is it, because those are not the same things.

        • hollywood says:

          I apologize for the brevity of my posts. Frankly, I thought you would have greater knowledge about all this. It seems there was some “sloppiness” on the part of Biden staffers. That has created an unfortunate coincidence of sorts, but I am hoping that further revelations will provide a clear distinction between the Biden docs and the Trump docs. Not that it will stop the frothy right from trying to equate the circumstances. There also remains the issue of whether some/all of the Biden docs were the subject of “overclassification” and not any threat to security.
          I regret I have no further light to shed at this moment.

        • Rayne says:

          You’ve already fallen into the right-wing frame with this: “a clear distinction between the Biden docs and the Trump docs

          There already is a very clear distinction. It’s called intent. There’s no obvious intent by Biden to hide government documents no matter the classification level; there’s been complete cooperation following affirmative, proactive effort to report discovery of and return documents which may be subject to Title 32 Sec. 2001.43 Classified Documents and/or Presidential Records Act. Even that second article which you linked indicates a good faith effort on Biden’s part because his staffers were looking for more documents to assure compliance with appropriate regulations.

          Trump, on the other hand, has repeatedly done just the opposite: comingled classified documents with personal effects; insecurely stored classified materials in violation of federal regs; falsely claimed turning documents over; turned over only portions of them; denied access to documents; failed to provide adequate security for documents after being asked to do so; claimed they were his personal possessions; claimed he declassified documents; venue shopped to obtain a favorable decision about a special master (and I’m sure I’ve missed more forms of obstructive behavior). Bad faith demonstrated over and over and it’s as obvious as the social media posts Trump published after the warrant was executed on Mar-a-Lago.

        • hollywood says:

          I appreciate the distinctions you have made and sort of took them as a given. I am hoping for a distinction between the character of the actual documents themselves. Without more, it seems that the Trump docs are considerably more numerous which I think lends support to the intent element. But I am curious about the actual docs. I’m not sure we will ever get that precise information. As for right wing frames, I try my best to frame things evenly but sometimes without complete success.

        • Ginevra diBenci says:

          hollywood, I appreciate your attempt to “frame things evenly.” It is very hard to do that now given supposedly fact-based reporting that in actual fact gives things the both sides treatment. These documents stories are a perfect example.

          There is no reason for Ken Dilanian, a frequent offender in this realm, to even frame this politically by saying the Biden disclosures will make it harder for Smith. That is NBC’s offense against fairness. Their appearance of objectivity makes it seductive. Don’t follow them down that road.

  18. hollywood says:

    With regard to the second set of docs few details are being reported thus far. The NYT says “The second set of classified documents from President Biden’s time as vice president were discovered at a storage space in the garage of his home in Wilmington, Del., a top White House lawyer said on Thursday.”
    [can’t link because paywall]

    • Rayne says:

      Link stories anyhow, indicating there’s a paywall. The reader will resolve the paywall issue; some of them have subscriptions. Do not use paywalls as a reason to weasel out of providing documentation.

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