Robert Hur Complained about Biden Notes that Trump Almost Certainly Already Declassified

If you ignore the overreading Robert Hur confessed to in order to justify writing a 388-page report that should have been 75, if you ignore the way Hur improperly used prejudicial language to attack a Presidential candidate and set up impeachment frenzy among Republicans, there are some interesting historic details about Robert Hur’s report, such as the details of what classified documents investigators found.

Thirty-four pages of the report consist of appendices, describing what investigators found where. And because Hur spent 156 pages explaining why he didn’t indict Biden based on the actions of Senate staffers shipping 2,000 boxes of Speech and Debate protected documents first to the Archives and then the University of Delaware decades ago, there are descriptions of how virtually all of the documents got where they ended up (except, of course, the two folders of Afghanistan documents around which he builds the excuse to write a 388-page report).

One of the most interesting descriptions, for example, explains how some of the most sensitive documents the FBI found — an envelope of documents about Obama’s Iran deal, including several with a bunch of compartment markings — probably ended up at Penn Biden Center.

The report describes that the documents were compiled in anticipation of a January 29, 2015 breakfast meeting at the Naval Observatory at which Biden attempted to persuade six Senators who had traveled to Israel together to support Obama’s Iran deal. Biden’s staffers got a bunch of compartmented documents delivered in advance; they were properly signed off in person. A picture of the breakfast meeting shows Biden with an envelope that may contain the documents in question.

Another picture shows Biden with some of the handwritten notes that would end up at Penn Biden Center.

Unlike he did with the Afghan documents, Hur did not invent a narrative to explain why Biden might have wanted to retain these. He noted that Promise Me, Dad, barely mention the Iran deal (it similarly barely mentioned the Afghanistan memo, but that didn’t deter Hur).

Hur surmises that Biden simply kept these really sensitive documents on hand, and they got moved, by someone else, when he left office.

Given his practice of having his front office staff store files he wanted to keep close at hand, Mr. Biden likely gave the EYES ONLY envelope to his executive assistant to keep within reach for future engagement with members of Congress. He and his staff appear to have eventually forgotten about it-along with other older files in the front-office collection-and staff members unwittingly moved it out of the West Wing at the end of the administration.

That’s how Hur declined to prosecute some of the most sensitive documents discovered (documents that, it should be said, would require Senators to testify if they were ever charged).

Less interesting and far more tedious are Biden’s Senate documents. Under Hur’s supervision, the FBI spent what must have been days and days going through the boxes sent in several passes to University of Delaware, discovering decades-old documents, many labeled Confidential which, he conceded, could be either a classification mark or Senate discretion.

Some of the documents are marked “CONFIDENTIAL.” While that is a valid marking for classified information, the term “CONFIDENTIAL” is also used in other contexts not involving classified information. Senate staffers could have understood these to be internal committee documents or simply sensitive documents created by authors who wanted to limit the number of people who viewed them.

It should trouble Members of Congress that Hur never took Speech and Debate under consideration in his analysis, particularly given that these were documents that Biden specifically didn’t want to retain.

Hur spent almost four pages discussing two binders (and one corresponding document found at Penn Biden Center) titled, “Weekend with Charlie Rose,” which were not marked as classified on the front.

It was, quite obviously, a briefing book that got brought back from Aspen to the Wilmington house and never moved from there.

In searching the contents of the box in the garage where they found one of the “Weekend With Charlie Rose” binders, agents found binders from other trips Mr. Biden took as vice president in the same box. 1340 A naval enlisted aide recalled that Mr. Biden kept such binders after returning from his trips. 1311

There must be hundreds of similar briefing books top officials brought back from one or another Aspen conference. That’s a problem. It’s not a crime.

You can see how tedious — and unnecessary — parts of this exercise were.

It’s Hur’s analysis of Biden’s diaries that I find most interesting, and troubling. Hur’s approach to these diaries is one of the most obvious flags of political bias in a report full of them.

Take his use of language. The word “diaries” appears 103 times in the report [note: someone with interns should replicate this work, as it is inexact]. In about five of those instances, Hur quotes the people around Biden referring to these notebooks as diaries. Two instances discuss the Presidential Record Act’s language treating diaries as personal records, exempt from PRA. Maybe ten or so appear in a section where Hur envisions that Biden would describe these as diaries as a defense, but the word is always put in Biden’s mouth. Hur adheres to using “notebooks” here.

Mr. Biden will likely say, he never believed his notebooks, which he thought of as his personal diaries, fell within that arrangement. He treated the notebooks markedly differently from the rest of his notes and other presidential records throughout his vice presidency, for example, allowing staff to store and review his notecards, but not his notebooks. 914 This treatment, he will argue, and the extremely personal content of some of the notebooks, shows that he considered them to be his personal property. Mr. Biden’s notebooks included gut-wrenching passages about his son’s death and other highly personal material. 915 His claim that he believed he did not need to send what he considered to be his personal diary to be stored at a government facility will likely appeal to some jurors. 916

We expect Mr. Biden also to contend that the presence of classified information in what he viewed as his diary did not change his thinking. As a member of the exclusive club of former presidents and vice presidents, Mr. Biden will claim that he knew such officials kept diaries, and he knew or expected that those diaries-like Mr. Reagan’s-contained classified information. 917 He also understood that former presidents and vice presidents took their diaries home upon leaving office, without being investigated or prosecuted for it. [all emphasis mine]

But the overwhelming bulk of those remaining 85 or so uses of the word “diaries” describe Reagan’s (or in two cases, other Presidents’) diaries.

By contrast, there are 461 uses of the word “notebook” in Hur’s report. That’s the word Hur uses to refer to what he quotes people around Biden calling the President’s diaries.

Reagan had diaries. And as a result, when DOJ discovered them, they remained untouched.

Biden has notebooks. By calling these notebooks, Hur permitted himself to do with Biden’s most private thoughts what DOJ did not do with Reagan’s: review them all.

Mr. Biden’s notebooks, which contained, among other things, his handwritten notes taken during classified meetings as vice president, presented a challenge. None of the pages contained classification markings but investigators assessed some of the content was potentially classified. Classification review by intelligence agencies of unmarked information is more challenging and time-consuming than for marked documents. We therefore reviewed all of Mr. Biden’s handwritten notes and selected thirty-seven excerpts totaling 109 notebook pages to submit for classification review. Investigators selected entries they believed were most likely highly classified and that a jury of laypeople would find was national defense information under the Espionage Act. [my emphasis]

All the gut-wrenching passages about Beau and whatever else (likely including a great many gut-wrenching passages about Hunter)? They’re identified with footnotes to make it easier for Jim Jordan to find them. Not dick pic-sniffing, honest. Just an attempt to find 37 excerpts that a jury of laypeople might believe were National Defense Information, even though the Presidential Records Act has a clear exception for diaries, and so this was never going to be charged anyway.

I was interested in what Hur selected anyway, but this background — the linguistic games Hur played to be able to snoop in Biden’s diaries — made the inquiry more important. Some of the 37 excerpts he chose were predictable.

Several weeks after the killing of Osama bin Laden, for example, then-Vice President Joe Biden wrote down his recollections about it, just like every other person involved.

On June 19, 2013, not quite two weeks after the first Snowden leaks, Biden attended a briefing by the National Security Agency.

Because it’s Joe Biden, there has to be an Amtrak connection.

But the selection that fries my ass about this exercise — the selection that makes me confident this shit is intended to blow up later in the year — is this one.

I have no doubt in my mind that these two pages of Biden’s diary are his version of these notes, Peter Strzok’s memorialization of Jim Comey’s description of what happened in the January 5, 2017 White House meeting where Comey, Barack Obama, Joe Biden, Susan Rice, and Sally Yates discussed what the fuck they were going to do about the fact that Trump’s incoming National Security Advisor had been picked up on FISA intercepts undermining Obama’s policy on Russia.

The red outline, as most will remember, is where someone who participated in Jeffrey Jensen’s review added an inaccurate note to package this up for a campaign attack on Biden.

The reason this fries my ass is that this meeting is something that Donald Trump and his allies have spent years politicizing and — as proven by that added misleading date — lying about.

The other reason this fries my ass is that Trump has declassified details of this, over, and over, and over. Hell, he even declassified the intercepts that might explain the HCS-O classification. It’s not entirely clear who did the declassification review of this (Hur had State stand in for the National Security Council to avoid conflict, but not in this case).

But particularly given the politicized background of this investigation, Hur should have left this well enough alone. It should not be the case that by licensing himself to snoop in Biden’s diaries, Hur can dig out the things Donald Trump would most like to read.

Robert Hur licensed himself to rifle through Joe Biden’s most personal thoughts by calling Biden’s stacks of paper “notebooks” rather than “diaries.” He then provided specific details about not just where to find the painful memories of his family struggles. But also one event that Trump has spent years trying to misrepresent.

38 replies
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  2. John B.*^ says:

    Was the AG obliged to release the report as written by Hur, or did he and other AG’s have some leeway and even editing responsibilities?

  3. WilliamOckham says:

    Dammit, Marcy, I had convinced myself I wasn’t going to read Hur’s report. Then you had to go and mention that reference to the 01/05/2017 meeting. Oh well, at least you did it today when I have, what, about 7 extra hours compared to everyone else in the U.S. Nothing like a little light reading to fill the time.

      • WilliamOckham says:

        Well yes. Except I needed context. I skimmed through the document and it’s worse than I thought. I’m starting to suspect that this report is an extension of the Durham nonsense, albeit much more professionally executed. If you look at this stuff using information warfare as your mental model, the connections are readily apparent. However, using that model is dangerous because the information warfare model is vulnerable to the “own goal” in a hilariously ironic way. It is so easy to impute an almost mystical ability of “knowing” to the enemy that you dig yourself into ludicrous horror fantasy (c.f. Flynn, Michael).

        So, yeah, I think it’s really important to see what comes next because that specific reference is sketchy as hell.

        • Ginevra diBenci says:

          I spent all yesterday reading it too. Otherwise I would’ve been talking out of my ass when trashing it. Now I consider myself informed…and yet, I couldn’t force myself through the appendices. It was almost kickoff. And I felt damn sick.

          The Hur-Ham report uses tricks to slip a narrative over the transom. He names/shames Biden staffers who might now get doxxed. He slips into a bizarro future tense when talking about Biden at trial, as if that suddenly became possible and not his fantasy hypothetical.

          Others have commented on the memory libels. You don’t need me for that, except to say it’s even more enraging than I expected.

          We need to learn how to shoehorn Big Narrative into our own openings. Now.

  4. soundgood2 says:

    Why do Democrats buy into the Republican assertion that only Republicans can investigate or prosecute Democrats and only Republicans can investigate or prosecute Republicans. If it is accepted that Republicans investigate Republicans, which it appears Dems agree with, than Dems should insist that only Democrats investigate Democrats.

    • trnc2023 says:

      I have no idea what Jack Smith’s political persuasion is, but the timing of his US Attorney appointments imply Democrat and he sure as hell doesn’t come across as a partisan Republican.

    • Marinela says:

      Carville mentioned in a recent interview that 14 out of the last 15 special counsels are republicans.
      He wanted to know why when a special counsel gets appointed is always a republican.

      • Rethfernhim says:

        Sincere question: What is the composition of the pool of potential special prosecutors? If they’re predominantly Republican, then it helps explain the lopsided ratio.

  5. boloboffin says:

    And here I was thinking this was a foolproof October surprise since all it would take to set off nationwide coverage like the Comey announcement about Hillary’s email would be Joe Biden making a gaffe between now and the election.

    Is there any way, now that this is a suspected dirty trick, to get out in front of it?

    • dopefish says:

      The only dumb thing about this Republican hit-job is that they seem to have done it about eight months too early.

      Yeah, they can spend the rest of the time between now and November bleating about how Biden is too old and seems to have a fuzzy memory. But Trump has the exact same liabilities plus other much, much worse ones.

      Maybe its wishful thinking, but I just don’t see how this is going to dominate election news cycles for another eight or nine months. There will be too much actual news between now and then for it to get much oxygen. (see for example, Trump’s statement that he would betray America’s NATO allies if they don’t start paying more towards their own defense… THAT is actual news that I hope voters will still care about by November).

      [Edit: or if Trump gets convicted of some of the ~91 felonies he’s been charged with, for example. Even being on trial during July or September might make it obvious to many voters that making him President a second time might be a bad idea.]

    • wetzel-rhymes-with says:

      Who are you asking, specifically? Who is going to get ahead of this? What you are saying would take a big production. For me it’s just a problem for personal relationships. Trying to share something like this in everyday life will make your friends start to worry about you. What I mean is that maybe the Democrats don’t have a game for this kind of thing. Who is even playing? The mentality is too dark to imagine, a special investigation used to generate propaganda. That is fascist by formal logic. I think fascist propaganda is beyond the capacity of a normal political party to respond. The crisis on the border is propaganda. Everything in the news is propaganda. The abuse the law here in the context of all the bad faith on evidence is a message of power, which is also part of the propaganda.

  6. Old Rapier says:

    It’s kind of difficult to see how this thing made it through a team of what 2 or 3 others? There may be some tea leaves to read when looking at the staff. The whole diary/notebook thing surely took some serious lawyering with, knowledge aforethought.

    • earlofhuntingdon says:

      Regarding the Jan. 6th trial before Judge Chutkan, the Sup.Ct. has apparently said Donald Trump has no immunity and can face criminal prosecution. That’s according to an MSNBC chyron. Still looking for a source that supports that.

    • says:

      funny that you used the phrase “quantitative analysis” just now, Rayne, as the former statistics professor in me was just thinking, as I was reading Marcy’s Ns of 103 and 461, that her hypothesis (that the ‘diary’-word use was deceptively, and, purposefully infrequent and ‘notebooks’ purposefully frequent to assist Jordan-Impeachment-Case-Building) is actually quite easily testable, and therefore able to be proven or debunked, by simple logistic regression. More importantly, one could also test the dumb alternative explanations GOP committee members would offer up to refute a finding of intentional deception or word manipulation.

      If Dem committee members don’t have a statistician, preferably one experienced in content analysis, and spss or sas software — now is the time to get both.

      • Ginevra diBenci says:

        They have a Katie Porter. I bet she could do it just fine.

        When they finish with the diaries v. notebooks issue, they might take up the very strange and insupportable verb tense shifts Hur indulges in.

  7. Rugger_9 says:

    Well, given how Defendant-1 ran his WH, I’d be surprised there would be a declassification record about the documents noted in the post. It was also pretty clear that semantic game-playing is a pretty standard RWNM tactic, i.e. ‘collusion’ rather than conspiracy which would be the formal criminal description of Defendant-1’s footsie with Putin.

    As I’ve noted elsewhere, this report demonstrated just how hackish and sloppy Hur was. Expect more of the same out of Weiss.

  8. Konny_2022 says:

    Is there any chance to check the transcripts of the Biden interviews with the Hur office? I’m asking because I find the only sentence in the report about Biden’s memory regarding Beau’s death not only outrageous but also obtuse and finally implausible:

    He did not remember, even within several years, when his son Beau died.840

    840 Biden 10/8/23 Tr. at 82-83.

    What does the insertion “even within several years” mean? I’d like to know on what kind of Q&A Hur’s conclusion is based.

    Altogether Beau’s name appears 14 times in the report (not including the 2 times in the WH letter attached), mostly describing documents found or handed over during the investigation like transcripts Zwonitzer had produced, “two of which were with Mr. Biden and two of which were with Beau Biden’s doctor.”

    • earlofhuntingdon says:

      As Bob Hur knows, even assuming Biden was confused, it wasn’t because he didn’t know the day and hour his son died. It was because he couldn’t believe that Bob Hur asked about it, and treated it as if it were a gotcha question. Bob is an unabashed, unrestrained partisan.

  9. HorsewomaninPA says:

    Laboring through only part of this report and part of the appendix, it crossed my mind that the attention to detail regarding minutae – could this SC be preparing all the evidence for Trump’s back-bench lawyers to bring to his document trial? They can’t argue that Trump didn’t take the documents, but they can argue that everyone does it and is cavalier about it. With all the details, they can draw parallels that makes Trump look normal.

    • David F. Snyder says:

      Though, Biden came clean right away; Trump hid things from his own lawyer, who had the sense to not sign the “all returned” document. That was the step too far (continuing to hoard dox) and Trump can’t hide it.

    • dopefish says:

      They already did it, the day after the Hur report was released.

      On February 9th, Trump’s lawyers in the Florida Trump-stealing-classified-documents case already mention the Hur report prominently in a Reply they filed (docket 300). Its mentioned in the 2nd paragraph and several other places. They argue that since Biden wasn’t charged, Trump shouldn’t be either.

      On February 11th, SC filed this MOTION for Leave to File Surreply (docket 302, re-filed the next day* as 305) complaining that it was improper for defendants to raise all these new issues in a Reply brief, instead of the proper kind of Motion which they claimed they were going to file anyway. Team SC asked the Court to either smack them down or at least give SC a chance to respond.

      * lawyer signatures on 302 were in the wrong place, the Clerk made them fix it and re-file.

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