What We Can’t Rule Out with Biden’s Classified Documents

The FBI did a consensual, almost 13-hour search of President Biden’s Wilmington home yesterday. The FBI found and seized six more classified documents “with surrounding materials” (some of which date from Biden’s time in the Senate) as well as hand-written notes from his time as Vice President.

Note that after Biden’s lawyer’s found a document in the room adjoining his garage, they stopped searching. DOJ came to fetch that document and took 5 more pages, all of which may have been in the same place. It’s possible (though in no way certain) that these additional documents were simply stored in the same place, the obvious outcome of DOJ’s effort to return and do a more thorough search.

The voluntary nature with which Biden has given information back to DOJ still starkly distinguishes him from Trump. And that comparison may give DOJ leverage to try to obtain the records it believes Trump still has.

But at this point, we can’t rule out several of the most damning details that are known to be present with Trump to also be present with Biden.

There are, as far as we know, at least three things that make Trump’s retention of classified records particularly damning:

  • The existence of a leatherbound trophy box in his office storing the most classified documents (alongside Time Magazine covers, which is one piece of evidence these are trophies)
  • The existence of 46 empty classified folders, which may be one reason DOJ suspects not all of Trump’s documents are accounted for yet
  • Two compiled documents integrating classified records with other materials, one dating from Trump’s presidency (the grant of clemency for Roger Stone) and one that includes at least 3 messages that post-date his presidency

I’ll review that last document, because it hasn’t gotten nearly enough attention yet.

One of the last filings released in Trump’s Special Master process, summarizing the disputes, described a “compilation” of two classified records (one Confidential, one Secret), and what appears to be four other documents: messages from a book author, a religious leader, and a pollster, as well as what appears to be a fourth document involving a lawyer. The messages all post-date January 20, 2021.

One potentially privileged document that had been scanned was removed from the database (SM_MAL_00001185 to SM_MAL_00001195). That document – excluding the one potentially privileged page (SM_MAL_00001190) – is discussed in the next section about the Filter Materials Log. The potentially privileged page is the subject of a separate letter from the Filter Team to Your Honor, which is sent today.


This document is a compilation that includes three documents that post-date Plaintiff’s term in office and two classified cover sheets, one SECRET and the other CONFIDENTIAL. Because Plaintiff can only have received the documents bearing classification markings in his capacity as President, the entire mixed document is a Presidential record.

Besides the classified cover sheets, which were inserted by the FBI in lieu of the actual documents, none of the remaining communications in the document are confidential presidential communications that might be subject to a claim of executive privilege. Three communications are from a book author, a religious leader, and a pollster. The first two cannot be characterized as presidential advisers and all three are either dated or by content occurred after Plaintiff’s administration ended. [my emphasis]

In other words, this document, which was stored in a desk drawer, suggests that Trump used classified documents at least once after he left the White House.

While there are press reports that Trump otherwise accessed documents after DOJ started looking for them — in part, by curating the ones he was willing to send back in January 2022 and hiding some from Evan Corcoran so they wouldn’t be turned over in the June 2022 search — this compilation seems to show that Trump not only knew the classified records were in his home, but he used them, at least once, after he left the White House.

Given the discoveries in yesterday’s Biden search, we can’t rule that out in his case, either. Bauer’s statement described the FBI taking, “documents with classified markings and surrounding material,” which doesn’t rule out a compiled document — though it also could describe documents and the other contents of the folder or box they were found in, which would be consistent with how DOJ approached the search of Trump’s home.

And the seizure of hand-written notes from the time Biden was Vice President means we can’t rule out the equivalent of the letters from Kim Jung Un that Trump took, memorabilia that, because it pertains to foreign policy, should also be treated as classified (and would be covered by the Presidential Records Act).

Both both-sides journalists and hopeful lefties are jumping to conclusions about what the Biden seizures mean. The truth is, we simply don’t know yet. We know the most damning details about documents Trump had largely because of his legal challenges, not because they would otherwise be available from this kind of report on the investigation.

Here’s a comparison of what we know of the two cases:

The obstruction is still what distinguishes Trump from Biden, because DOJ would most likely charge a Constitutional officer only with 18 USC 793(e), refusing to given classified documents back. Biden has made multiple efforts to give documents back: Trump has made multiple efforts to refuse to give documents back.

But as for the other damning details we know exist with Trump? We can’t rule them out with Biden.

Update: I’ve changed the number of Biden docs, to allow for some uncertainty about these are being referenced. We don’t have the FBI inventory, like we do for Trump.

86 replies
  1. wasD4v1d says:

    Nice summary, clarifying. I am reading that Main Street America is not as confused as ‘the media’ wants them to be about these differences. If any of these documents connect to Ukraine (Hunter! Laptop! d-Pics!), this is unlikely to end anytime soon. Actually, even if there is no connection, the House of Santos will gnaw this bone for generations).

  2. Silly but True says:

    Well, in the grand scheme of things, vanity is probably a lesser sin than selling out one’s own government secrets to the highest-bidding geopolitical enemy foreign power.

  3. jecojeco says:

    Another point is that Biden retained his security clearance post VP.while trump had his yanked the minute he was dragged kicking and screaming from the WH.

    Another important point is that while NARA seemed to have somewhat of a grip on trump’s final days to the WH I think it’s safe to assume that trump was stealing anything US that he perceived had value, including information that could be monetized, for his full 48 months not just the lame duck months. Kushner too.

    For national security purposes, aside from forensic reasons, a thorough FBI search of all trump properties for US owned items should be performed by FBI and US Marshals. FBI to identify & retrieve national security items, US Marshals to recover other stolen US property, trump’s stolen memorabilia.

    If trump’s mindset was that he was president for life until somebody forced him out, then by that same deluded thinking everything relating to the presidency was his personal property. He thinks he was wronged and he’s a president in exile in MAL and everything he took with him is rightfully his. That whacky thinking colored his defense that the government had to prove they were the rightful owners of the documents because he possessed them.

  4. Dryly 41 says:

    Even after receiving a subpoena TRumpster did not give the documents back. The Justice Department had to get a search warrant upon a showing of probable cause to get the stolen classified documents back.

    • bmaz says:

      What is “TRumpster”? Do you think it assists the discussion, credibility, searchability or anything else about this blog, much less this post comment section, to flippantly use such petty and cheap terms? Does it make you have jollies? Why?

      • trnc2023 says:

        Yes, “Trumpster” is so crude. We need to keep this blog to the standards exemplified by the use of more reverential nicknames such as “MattyDickPics” and “Matt ‘big dick toilet salesman’ Whitaker.”

        Just to be clear, I have no problem with any of the nicknames listed. Just wondering which standard commenters should be following.

        [Please use the same username each time you comment so that community members get to know you. This is your third user name — you’ve commented as “trnc” and “trnc2022”; please pick a unique username which is a minimum of 8 letters in length and NOT dependent on the day/date/year you’re commenting here. /~Rayne]

          • rip no longer says:

            I generally agree that some naming conventions should be used – both for the purpose of readers understanding the who/what/etc. but also for doing stuff like searching on terms.

            However, even the most austere posters on this site have used nicknames for some favorite characters. I’ll bet even bmaz is guilty of a shortcut now and then.

          • giorgino says:

            Please no, no Marvel comics joint! And yes, bmas has used shortcuts as well. But moderation is difficult, and not to be an apologist for bmaz, his sentiment is important to be reinforced, from time to time, for the benefit of us all.

          • Jared Shoemaker Jr says:

            Your concern for the moral high ground is touching, especially in face of people who want to kill us

            • Rayne says:

              The whataboutism is annoying. As a BIPOC woman I think you can ease the fuck up because bmaz’s sarcasm isn’t an existential threat.

              Community members who’ve been here a long time already know bmaz is annoyed by misspellings of Trump’s name.

              I’d personally prefer a little more creative effort invested in references to the tangerine twat waffle, but that’s just me.

  5. freebird says:

    None of this makes sense until we know the gravity of what is in the files. It appears to me that letting out a file with highly sensitive information would be tracked intensely. Since Biden had files from his days as a senator in 2008 tells me that these files are not tracked or important because no one knew what was missing. A well run library knows where its books are and which are missing. A library with incunabula requires the reader to fill out forms, put on rubber gloves as they read the items in a special room.

    If the information is disclosed how could you tell who disclosed it? We need an example of what got out and the harm it did. Until then, this is all feckless speculation. Reality Winner got sentenced to 5 years in prison for disclosing obvious information.

    • P J Evans says:

      There zero evidence, not even hints, that Biden used the docs he had for any purpose that wasn’t legal, unlike the former guy, who would have sold his less-immediate family to the highest bidder if it got him money and adulation.

      • Knox Bronson says:

        His “less-immediate” family? You are ascribing to him a quality he does not possess. There is only Donald and not-Donald. When the indictments start rolling in, let’s see who he throws under the bus first.

    • wetzel says:

      I have no expertise in secure document tracking protocols, but to my mind what you’re saying seems contradictory. You claim that if the material were so sensitive and important, people would know it was missing. I think the opposite may actually be the case, that the more sensitive a document, the fewer people would know about it.

      • freebird says:

        The point is that if a file is created people know about it. A curator knows it exists because it was registered with a subject serial numbers and the like. Uncreated files that we don’t know about is the danger. For example, a FOIA request could not be filled or even redacted if there is no file.

        It was reported that Trump would complain about people taking notes about meetings. It is the lack of memos and notes that should be the most concerning.

      • freebird says:

        I direct you to executive order 13526 regarding classified documents. You will find that if a document is classified, it will leave a trail.

  6. Michael_22JAN2023_0914h says:

    IDK what anyone else thinks, but these are my takeaways:

    – I trust Biden to honor laws, so I don’t suspect criminal motives behind him having classified docs he shouldn’t possess
    – Biden didn’t obstruct justice or lie about anything, and cooperated to my knowledge
    – Who else has classified material in their possession that shouldn’t?
    – I’m not aware of Biden having docs for SCIF viewing only, Tumor had this type
    – Why is there so much classified material, and how much of it is really that important to keep secret?
    – Biden has made it impossible for DOJ to charge Tumor on his docs case because the public isn’t capable of nuance or critical thinking and will see it as Biden punishing Tumor for the same crimes he committed. Probably not true, but it’s laughable to think DOJ isn’t influenced by political dynamics.
    – The only way Tumor could be charged is if Biden resigned the presidency, taking responsibility for his improper possession of documents. If he doesn’t, both cases become sort of tempests in teapots for the greater public.

    [Welcome back 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 have quite a few community members named “Michael” or “Mike”; your name has been changed temporarily (until you choose a new name) to indicate the date and time of your first known comment. Thanks. /~Rayne]

    • John Gurley says:

      Biden’s and Trump’s cases are seperate. The existence of Biden’s case is no defense for Trump. Would you drop a murder case simply because another murder occured.

      And the media can behave as if Trump will be tried in the court of public opinion, but we fortunately still have a system where those decisons are made in the court of law.

      [FYI – see my note on 4:17 p.m. comment. /~Rayne]

    • John Gurley says:

      Biden’s and Trump’s cases are seperate. The existence of Biden’s case is no defense for Trump. Would you drop a murder case simply because another murder occured?

      And the media can behave as if Trump will be tried in the court of public opinion, but we fortunately still have a system where those decisons are made in the court of law.

      [THIRD AND FINAL REQUEST: Please use the same format each and every time you enter your username. Your comments at 4:15 and 4:17 p.m. were held up *again* because you typed in “john gurley” not “John Gurley,” the name under which you already have ~32 approved comments. These comments have been edited to correct the username. Future comments **will not** be cleared through moderation if username is not a match INCLUDING CASE. /~Rayne]

    • noromo says:

      I’ll let bmaz weigh in, but I’m the public and I think, to your last two points, that you’re full of it.

  7. John Gurley says:

    Isn’t this the third time Biden’s Delaware house has been searched?

    A bit bewildering it has taken so many people to find… six pages?

    [SECOND REQUEST: Please use the same format each and every time you enter your username. Your comment was held up *again* because you typed in “JOHN A GURLEY” not “John Gurley,” the name under which you already have 31 approved comments. This comment has been edited to correct the username. Future comments may not be cleared through moderation if username is not a match. /~Rayne]

  8. BROUX says:

    Even without malice, these kinds of errors are still a little confounding.

    Seriously, I would imagine that there must be a formal process for keeping track of where classified documents are at all time, and who took them there, and when. Basically, a “master list” with document numbers, and all dated information about its whereabouts. A bit like the chain of custody for clues in a criminal investigation. A simple excel spreadsheet on google docs could serve to do it, but more realistically this master list would have to reside behind tons of firewalls and passwords obviously. If there is such a master list, then the investigation (to call it that) should be very short: go see in the master list who last checked out and in the said document.

    Furthermore, apparently pieces of classified documents were left behind by mistake among other unclassified documents. But is it even legal to disassemble a classified document and disperse its content? Aren’t these things paginated and bound together? If so, shouldn’t it be the responsibility of the last person who moved the remainder of that document to verify that it is whole? The master list could include the total number of sheets every time. Again, when pieces of documents are dispersed the investigation should be very short: go the the master list and see who last had this document in their hands.

    There are probably too many classified documents. There are errors, and there is incompetence. It’s not freaking rocket science. This looks like the US government is populated by the Marx Brothers. But hey, I guess it’s good enough for a government operation.

    • P J Evans says:

      I think it would have to be a master list in each agency that classifies stuff. And after x many years – 25, 50, 75? – there should be a review to see if a doc still needs to be classified, and at what level.

    • xy xy says:

      IRS employees are not allowed to view tax returns of anybody unless there’s a reason and there are procedures to follow.
      The same with lets say grand jury material, SCOTUS Roe material and other stuff.
      Yet here and there, there are breaches by personnel and alarms don’t always go off or their supervisor just doesn’t care enough to follow-up.
      So I’m sure there are intentional and probably unintentional breaches here too.
      And as far as spreadsheet or docs, easier said than done.
      We’re talking about humans, though I’m not sure all SCOTUS is, and if a person gets distracted and takes “their eyes off the ball”, like keeping track of prisoners in a jail, and then fills or doesn’t fill the spreadsheet or doc and then files or doesn’t file the item, then you’ve lost track of the trail.

    • rip no longer says:

      This is all dealing with printed material that has visible stamped markings. Most of the information flow in this and other governments is not via pieces of paper.

      It’s a lot more interesting when you are dealing with a collection of information that is classified at different levels. Without other guidance the whole collection should be treated at the highest level.

      However with electronic communications, the information that flows across the wires can have many markings and handling instructions. I’ve worked in situations where certain fields and records in databases had markings that were different than the overall collection. It’s a difficult problem.

    • Vinnie Gambone says:

      The tracking questions bother me too. What the heck’s the point of the folders and markings and colorful dressings of authority and control if, in reality, there isn’t any?
      Do presidents and their staff have access to indexes of Top Secret files they could request order be brought to their office? Did Jared have access to the indexes? Oh lookey here. There may be way more docs missing if authorities didn’t know these docs were missing.
      Bothersome, worrisome that keepers of this information don’t seem to know what all is missing. Like library books, … hey you checked this out, where is it ? Shouldn’t be searches. Should be over due notices sent. Same with Biden’s mess. Seems there are huge control failures. That seems the largest problem, no?

      • gertibird says:

        It’s not just the classified paper that needs control. With smart phones it’s real easy to photograph. Copy machines too. Classified doc’s would be retained. It wouldn’t surprise me if Kushner did this now and then. I question his cozy relationship with MBS that got him $2 billion to invest for an amateur investor. Kushner would be cognizant enough to make sure the money didn’t come until he was out of the Administration.

      • xy xy says:

        Not that it’s accurate, but I keep hearing that NARA didn’t know the Biden docs were missing.
        Yet they did know Trump docs were?

    • John Thomas says:

      Your comment is obviously in jest, but in all seriousness, why not have ALL previous Presidents (still living) submit to a voluntary search of their possessions?

      Under the best of circumstances, office relocations are a chaotic scramble… especially if you were anticipating staying in place for another four years.

      My own government office relocated three times over twenty years, and despite our advance knowledge of each move, whole boxes remain misplaced, so it’s easy to see how six pieces of paper could get lost in the chaos.

      Perhaps NARA standards should be strengthened, maybe even to the point of having Executive Office files surrendered to NARA for review before being released back to the then-out-of-office Executive?

      • Tom-1812 says:

        Our child protection agency had a paper file history going back over a century, so when we relocated to a bigger, spiffier office building our admin. staff found many faded, yellowing, misfiled and long-since-assumed-missing documents. Paperwork handling was never my strongpoint so I kept a “File Drawer of Shame” in which I would hastily jam all the random documents and papers that covered my desk at the end of the work day to shield them from the eyes of the overnight cleaning staff. Clearing out my “FDoS” was one of those rainy day tasks that had to wait until I finally retired.

        • Francine Fein says:

          One company I worked for moved our offices to another building. One of the employees packed his office and neatly labeled each box to describe in a few words the contents. The last box was labeled “odds and ends of things that should be in other boxes.”

      • P J Evans says:

        We moved at least three times while I was working in one group. Each time we packed out own stuff, and professional movers handled the rest. But there was still a lot of stuff that no one claimed. (I acquired some very pretty and absolutely-not-microwave-safe mugs from the second one, when we were relocating for a year.)
        And before that, we were building a database and had the historical records to work from, which went back decades. (Yellowing and brittle: we got those. And stuff that was nearly as old but on paper with high cotton content, and holdign up very well.)

        And having retired: I still have boxes from those moves at home, with personal stuff, that I haven’t “unpacked”. Been retired for 10 years…

        • xy xy says:

          I remember news reports of when at a post office here and there they moved some equipment they would find decades old letters that slipped through the cracks.

      • Silly but True says:


        Also we need to understand that Execuyive Orders and federal statutes covering classified documents, as well as agency rule making on federal records is constantly evolving.

        The norms that may have covered Carter are long obsolete, and it’d be pointless to seek to apply norms of 2023 to a President of nearly a half century ago are pointless.

        This would be donkey work; a waste of whatever federal resources would be used to reclaim possible records from 1977-1981, if they even exist.

        In tightening practices now, let’s not break what doesn’t need fixing.

    • Marinela says:

      Why not ask all congress people including republicans to consent to a search for classified documents to all their properties, at the same time?

    • Just Some Guy says:

      Coincidentally, yesterday was the 50th anniversary of LBJ’s death, the last Democratic Party President to have died.

      I hope nothing but good health to the Man from Plains.

  9. Warren Peese says:

    With every new discovery of classified materials (and we’re on #5 right now), makes “accidental” less likely and “willful” more likely, the latter of which is a crime, and add “gross negligence” to the mix as well, which is also a crime under the Espionage Act.

    [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; I’m sure it was just an oversight that you used “Paul Montagu” and not “Warren Peese” as you have for previous comments. Your name has been edited this time but future comments may not clear moderation if your username does not match. /~Rayne]

    • emptywheel says:

      Thanks for sharing.

      How is that you think a series of consensual searches affect the intent of the documents being there in the least little bit.

      They might! They might not! This is another thing on the list things that people don’t know. You have literally no idea. None!

      • Jane Ward says:

        “series of consensual searches” – due to the way the msm reports, re-reports, obfuscates, and mischaracterizes events – I’m desperate for an accurate timeline of the Biden document searches: who searched, what dates, what locations, number of documents, and classification level if known. Has anyone done this? please point me in the right direction

      • Warren Peese says:

        Just that, Marcy.
        How many more times will classified materials be found before Hur decides Biden’s actions were “willfully retained” instead of accidentally retained?
        How many more times will classified materials be found before Hur decides Biden moves from “extreme carelessness” (a la Comey on Hillary’s home-brewed server, which carries no legal weight) to “gross negligence”, which is a crime.
        It should be concerning to any Democrat, any American, that this keeps happening, and Hur would not be doing his job if he didn’t take a pass at Biden’s beach house.
        I appreciate that Biden is cooperating, and I acknowledge that Trump’s crimes are far and provably worse.

        • Rayne says:

          How many times” — the question is not about how many. There’s no meter ticking. The laws about classified material handling and presidential records don’t work that way.

          You want a simple black-and-white answer and there isn’t one when the materials themselves cannot be shared with the public except in the most opaque manner. Nor can anybody at this site give you an answer when so many details about the materials and the context of their origins and discovery are not available.

          You want a fundamental difference in Biden versus Trump, apart from cooperation? Ask yourself if Trump would simply declassify everything collected from his properties were he still president and then keep them. Biden has not done that in spite of the fact he’s the ultimate classifying authority.

          • xy xy says:

            I’m trying to picture what would happen in the US, in Congress if Biden were to declassify the docs found on his properties.

            • Rayne says:

              Focus on whether the Democrats in the Senate would have a problem with it. I’m pretty sure they would, and that’s what it would take to make a case for impeachment in House to move to conviction and removal in Senate for abuse of power.

              But I don’t think anything we’ve seen so far even as thin as the public information has been to date rises to that level. There’s no obvious signs of intent to obstruct or fail to comply by correction upon discovery. And certainly no trash talk on social media.

          • Warren Peese says:

            Rayne, Special Counsel Hur is going to arrive at a “black-and-white answer”, where (akin to Mueller) he’ll conclude that there’s no evidence or that he “did not establish” a violation of the Espionage Act or say that Biden is not exonerated (or not NOT guilty) and leave it to Congress or a post-Biden DOJ to reckon with. You may have a different opinion, but every time more classified documents are unearthed, raises more suspicions for me.
            Two, declassification is irrelevant under the Espionage Act, where the word “classified” or “declassified” doesn’t even appear in its verbiage, and equally irrelevant is the fact that both the prez and VP have original classification authority. 18 USC 793 does mention “materials relating to the national defense”. In effect, the act doesn’t care how a document is labeled, if they’re under the umbrella of “national defense”, they’re covered.
            Also, declassification is a moot argument because, although Trump made a lot of noise about it, his attorneys never raised the issue in a legal setting, for good reason.

            • Rayne says:

              First, you’re the one who came in here demanding the black-and-white answers. If you’d already made up your mind, don’t waste our valuable time and comment space.

              Second, good luck with the Espionage Act and a seated president who was a former VP and a former senator when insurrectionists are still seated in both houses of Congress — especially when the DOJ has now demonstrated it’s compromised badly.

              Third, fuck Trump. He beat on the table because he had no case and both he and his third-rate team of hacks know it.

            • bmaz says:

              Hi “Warren”. Your obnoxious and insulting response to Rayne has been sent to the trash heap. Where it belongs. One more jackass comment like that, and you will be done. I hope that is clear.

    • earlofhuntingdon says:

      As much nuance and as many assumptions and exaggerations as a Faux Noise broadcast.

      For one thing, Trump had four years in office, in which he did precious little work. Biden has nearly half a century, which increases the odds of mishandling vs. intentional conduct. Nor does Biden have the long history of wrongdoing that Trump has, which suggests he deserves the benefit of the doubt that Trump has long since tossed away. But we don’t know, as EW repeatedly says.

      • Francine Fein says:

        It irritated me that the NYTimes titled their article about finding more documents: “Investigators Seize More Classified Documents From Biden’s Home” — the word seize, which mostly is defined as “taken forcible possession of” seemed alarmist and prejudicial.

      • Marinela says:

        Yes, the republican base, republican congress people have zero credibility now to start being “concerned” about Biden’s documents mishandling, when they completely destroyed their credibility. Defending Trump for four years, and still continue to support him.

        When they kick him out of the GOP party, primary him, stop paying his legal fees, and they behave like a sane political party then I’ll listen to their “concern” about Biden’s mishandling of classified documents.

        If there is anything concerning about Biden’s documents, it just aggravates Trump case, making the Trump apples more rotten.

  10. Bay State Librul says:

    Well said and “on the money.”
    Sadly, we are dealing with 74,223,369 voters who voted for Trump, and watch Fox News.

  11. Savage Librarian says:

    What stood out to me in this post is the reference to a lawyer connected to Trump’s compilation of classified records. So, in addition to the “messages from a book author, a religious leader, and a pollster”, Trump’s compilation of classified records now also includes “what appears to be a fourth document involving a lawyer.”

    That seems to slide together with this information from the post on Herschmann (1/20/23), although I’m not entirely clear in what way. Perhaps Herschmann is the lawyer associated with the compilation. Or, perhaps, he was telegraphing (maybe through Haberman or others) to that lawyer and to Trump:

    “Almost immediately thereafter, Herschmann asked to review with his own lawyers (former colleagues of his from Marc Kasowitz’ firm who also repped Ivanka, Jared, Ivanka Trump’s Chief of Staff Julie Radford and aide Rachel Craddock, and two of Trump’s Executive Assistants, Molly Michael and Austin Ferrer, as well as Alex Cannon, the latter of whom was represented pro bono), in part, whether “if I don’t recall something” it’s invoking a privilege.”

  12. Bay State Librul says:

    Also, the NYT were up to their three-card monte word tricks by using the word “seize”. As in, the DOJ seized Biden’s documents.
    One definition of seize is take hold of suddenly and forcibly. ’twas neither sudden nor forcible.
    What have we here?
    The editor asleep at the desk.

    • Just Some Guy says:

      At this point WRT the NYT, I’d say the editor isn’t asleep, but is instead committing journalistic malpractice. See also: their awful article on trans kids.

  13. Tom-1812 says:

    Perhaps years of handling sensitive documents with no untoward incidents led to a certain degree of complacency and carelessness on Biden’s part, assuming he was one one responsible for the files found at his home. The situation reminds me of someone bringing home paperwork from the office to finish up over the weekend, but never quite getting around to it. Or perhaps circumstances change and the paperwork is no longer so important, or even required, and the files are then relegated to the mental backburner and eventually forgotten.

    • P J Evans says:

      It’s more like having someone else packing up your stuff when you’re not able to look at everything, so you get stuff that you didn’t want to keep, but you don’t know you have it because you haven’t had to get into those boxes. (And if you’ve ever been moved by professional, they’ll pack *everything* including the trash. Plus any tools that they’ve accidentally dropped in the boxes.)

      • Tom-1812 says:

        So Biden may not even have known the files were in his home and may not even have any idea how they got there, especially for the papers dating back to his time as a Senator.

      • Rugger_9 says:

        It is tempting but perhaps incorrect to link the CoS departure news to this mishandling. Ron Klain was also Biden’s VP CoS as well so he would honcho any clearing out of offices.

        Hopefully this will finish the list, because I do not know how many more properties Biden has as opposed to Individual-1 with all of the ones he shuttled between to (allegedly) run up USSS payments for room and board.

  14. Zinsky123 says:

    Marcy – thanks again for a succinct comparison of Biden’s classified document issues with Trump’s. Very helpful. The two document compilation example is helpful in analyzing the seriousness of the offense, since it shows “synthesis” of information from two classified sources, which pretty clearly demonstrates intent to exploit the information. As a non-lawyer, I have a statute of limitations question regarding classified documents being held by someone without authorization – Does the “tolling” begin on the date the information is obtained without authorization or the date that it is discovered to be in one’s possession without proper authorization? (I hope that makes sense – I am just interested in when the statute of limitations might lapse on Biden’s documents?). Thanks again!

    • freebird says:

      I went and re-read executive order 13526 regarding classified documents and I found it vertiginously Byzantine. However, there are some documents that become declassified by the mere passage of time unless they are re-classified. Frankly, some of the classifications are whimsical and arbitrary.

      • Shadowalker says:

        Far as I can determine, Nixon was the first to set a time limit on declassification (30 years), Carter dropped it to 20 years, Reagan ignored that and rescinded to perpetuity (or classified forever whichever comes first) and also started restoring classification (so long as public dissemination was limited).

        Yes, many of the reasons for classification can be highly subjective.

        One thing everyone should keep in mind is that classification is an Article II function, and therefore neither the courts (11th’s benchslap of Judge Cannon’s idea that an Article III court can insert its nose in an Article II function when she restricted their use of classified material is a good example) nor congress can set limits on its use, purpose or determination.

        • freebird says:

          On executive order 13256 regarding classifications, signed by Obama on 12/29/2009, classifications are to last 10 years, as stated in part 1, section 1.5, subsection c. Then listed are exceptions to this rule. This executive order is still in effect.

  15. FL Resister says:

    Thanks for this post and all of the excellent discussions here about the many sides to documents belonging to the government being in possession of a president and ex-president.

    Seems to me if the tendency is toward equivocation which appears it unavoidably is, then Donald Trump properties should be searched for known missing documents evidence remains.

    Of 300 classified folders identified at Trump properties only about a third of the documents were recovered is my impression. Then there is the rest of the presidential records he’s got illegally squirreled away.

    If false equivalence regarding culpability is unavoidable, then the searches of other Trump properties should commence to balance the scale of Justice.

  16. Christopher Blanchard says:

    I was, once upon a time, a UK Civil Service Records Officer, and amongst my charges were the registration documents for Friendly Societies and Co-ops. I can remember having particular trouble with the set up for The Hearts of Oak Friendly Society, which was a still operating insurance company at the time. It was a 25 foot parchment roll, including the signatures of the Duke of Wellington and the like, dated (I think) 1926. Efficient office procedures can be a bit of a bastard.

  17. Epicurus says:

    The Presidential Records Act requires compliance by Presidents and Vice Presidents with the requirements of the Act. It doesn’t matter if agencies have check lists for what has been loaned out and should know what is outstanding. That responsibility cannot be delegated, although accountability can be. In simple terms that means someone has to look at each document/piece of ephmera, tangible or digital, leaving the Prez’s or VP’s office after the expiration of her/his term in office (probably even before) and determine whether it is NARA bound or personal bound. A President or VP doesn’t do that kind of scut work (it is beneath her/him to do so) but the compliance requirements compel, at a minimum, a process that fulfills the requirement that someone reviews each document and the Prez or VP subsequently determines that the requirements of the act have been fulfilled. Neither Mr. Trump or Mr. Biden fulfilled that responsibility, most obviously because if someone had looked at each document it is inconceivable that someone would overlook a classified document (that assumes on my part that the reviewer(s) were not ordered to not look at something). There was no responsible or accountable process put in place by either Mr, Trump or Mr. Biden to insure compliance with the Act. There could not have been if classified documents were bundled up and sent to a personal location.

    People can argue about Mr. Trump’s intransigence and Mr. Biden’s favorable follow up or about the levels of classification or about agency documentation of classified documents but the results of Mr. Trump’s and Mr. Biden’s lack of management oversight was a clear indication that compliance was not something either one cared about in any great detail. People can decide for themselves if that is a worrisome attribute of compliance or management or just the way things are, so no biggie.

    • David F. Snyder says:

      We simply don’t know if Biden delegated someone or not. We know Trump did (Patel), last June, too late. But even then, I’m not buying your argument. Biden has exhibited compliant behavior in spades. As far as we know, he may have delegated the job to someone who was sloppy but reported back to the boss that the deed was done. But then we don’t know that either. We’ll have to wait for Lascher and Hur to report.

  18. Cheez Whiz says:

    Has anyone written about how widespread this tendency to “take” classified documents and forget about them? Given that 2 characters as disparate as Trump and Biden were able to easily waltz off with these documents, it can’t be just them. I suspect public estimations of how seriously these documents are taken by the bureaucracy that creates them is misplaced.

    • Silly but True says:

      The two individuals in question acted as two of the only two unique positions in all of U.S. government; the takeaway is not that agency rules or regulations, or statutes or executive orders covering agencies’ conduct are lax, but rather that unique entities act unique.

    • emptywheel says:

      It can be just them (and David Petraeus).

      The difference with them is that they’re both outside normal laws on key points, 1) that because their access to classified information has always been based on an election they don’t have security clearance and 2) they were original classification authorities as POTUS and VPOTUS, so no one would be inclined to stand up to them on handing classified records because they are literally above the law.

  19. Mary_23JAN2023_1252h says:

    I would also like to know how many were Top Secret in both camps. Also, I think the number 48 should be listed in Trump’s column for empty ‘Classified’ folders. Mind boggling!

    [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. “Mary” is a reserved name used by a former contributor; your username on this comment will be temporarily be edited to reflect date/time of your first known comment until you have chosen a more unique name. Thanks. /~Rayne]

  20. David F. Snyder says:

    Maybe I missed it: any good conjectures as to why the Stone pardon was classified? Is that standard for Presidential pardons?

Comments are closed.