Where Alina Habba Didn’t Personally Search

Given the news that Alina Habba appeared before the grand jury investigating Trump’s stolen documents, I wanted to go back to the declaration she submitted in the NY State investigation pertaining to diligent searches for documents in that investigation back in May 2022.

Politico reported on it before the public release about details of the stolen classified documents, and as such was taken as a claim that Habba conducted a search of the locations where documents were known to have been stored.

But it wasn’t.

Obviously, that’s true because (as Habba made a big deal of pointing out just after the original Politico report) the May 2022 searches were just for documents responsive to Tish James’ subpoena focused on the valuation of various properties, not for classified records.

But that’s also true because Habba did not search all the locations known to have stored Trump’s stolen documents.

The certifications involved include a nested certification, on Trump’s behalf, to the diligence of the search. Trump personally signed an affidavit, but he relied on the diligence of searches done by others, including the physical searches of three properties by lawyers.

5. Nevertheless, in an abundance of caution and in accordance with the Order, I authorized the additional, follow-up searches to be performed on my private residences:

a. On May 4, 2022, I authorized my attorney, Alina Habba, to search my private residence and personal office located at Trump National Golf Club in Bedminster, New Jersey for any and all documents responsive to the Subpoena.

b. On May 5, 2022, I authorized Alina Habba to search my private residence and personal office located at The Mar-a-Lago Club in Palm Beach, Florida for any and all documents responsive to the Subpoena.

c. On May 5, 2022, I authorized Alan Garten, General Counsel for the Trump Organization, to search my private apartment located in Trump Tower in New York, New York for any and all documents responsive to the Subpoena


It is my understanding that searches of the above-listed locations have been performed by my attorneys, the Trump Organization Legal Department, the Trump Organization IT Department, and others.

Habba was not involved in the searches of business locations in Trump Tower or Trump’s residence there. Alan Garten was.

Garten was similarly responsible for compliance with subpoenas in conjunction with the various Russian investigations, and there are what SSCI called, “known deficiencies in the Trump Organization’s document responses,” including the email between Michael Cohen and Dmitri Peskov’s assistant, among others.

Garten did not submit a declaration in this package. Instead, Habba vouched for the diligence of Garten’s search.

f. On May 5, 2022, I coordinated and communicated with Alan Garten via telephone with regard to his search of Respondent’s private residence in Trump Tower including all desks, drawers, file cabinets, and similar locations likely to house files or documents. The search did not identify any documents responsive to the Subpoena.

So in this filing, Trump relied on the searches done by Habba and Garten, but Garten relied on Habba to attest to the diligence of the search.

And no one searched the storage facility in Florida at which some of Trump’s White House papers were stored, where two classified documents were discovered in follow-up searches by Trump’s lawyers in November.

But even the two properties Habba did search include gaps.

b. On May 4, 2022, I diligently searched each and every room of Respondent’s private residence located at Trump National Golf Club Bedminster, including all desks, drawers, nightstands, dressers, closets, etc. I was unable to locate any documents responsive to the Subpoena that have not already been produced to the OAG by the Trump Organization.

c. On May 4, 2022, I diligently searched Respondent’s personal office located at Trump National Golf Club Bedminster, including all desks, drawers, file cabinets, etc. I was unable to locate any documents responsive to the Subpoena that have not already been produced to the OAG by the Trump Organization.

d. On May 5, 2022, I diligently searched each and every room of Respondent’s private residence located at Mar-a-Lago, including all desks, drawers, nightstands, dressers, closets, etc. I was unable to locate any documents responsive to the Subpoena that have not already been produced to the OAG by the Trump Organization.

e. On May 5, 2022, I diligently searched Respondent’s personal office located at Mara-Lago, including all desks, drawers, file cabinets, etc. I was unable to locate any documents responsive to the Subpoena that have not already been produced to the OAG by the Trump Organization.

It’s hard to see how a one day search of these facilities, May 4 at Bedminster and then May 5 at Mar-a-Lago, could be that thorough, in any case.

But on May 5, when Habba was searching MAL, the bulk of the documents that were later seized were probably still in the storage closet from which they were moved in advance of Evan Corcoran’s search leading up to June 3. That’s neither the residence nor Trump’s office.

While there were likely classified documents in the drawers she searched at the time she searched them — a Secret document attached to Roger Stone clemency paperwork, and a Secret and a Confidential document attached to post-Administration messages from others — it’s not clear where the leatherbound box that held the most sensitive documents would have been stored in May 2022 (which was ultimately found in the office). And it’s still not clear where the classified documents in a box with Trump’s White House schedules was when the FBI conducted its search in August.

But there’s no way Habba would have found most documents, because most documents were still in that storage room.

They are understood to have been moved out of the storage room into the residence after the May 11 subpoena, days after Habba’s search.

Habba’s testimony would have been useful for showing that when asked to do a diligent search, Trump specifically hid from her one of the locations where he stored documents. She also would have added testimony about the absence of boxes in the residence when she searched it.

Some People Have Sex Toys; Trump [Claims He] Has Empty Classified Evening Briefing Folders

I’d like to situate the details about an empty folder marked, “Classified Evening Briefing,” from this Guardian story into what we know about the searches of Mar-a-Lago. It describes that the folder was first observed, in Trump’s residence, and recorded in a report shared with DOJ by the investigators who did the search of Trump’s properties. But Trump didn’t return the folder because it, itself, was not classified information.

The folder was seen in Trump’s residence by a team of investigators he hired to search his properties last year for any remaining documents marked as classified. The team transparently included the observation in an inventory of Mar-a-Lago and Trump properties in Florida, New Jersey and New York.


The folder is understood to have not been initially returned because the lawyers thought “Classified Evening Briefing” did not make it classified, nor is it a formal classification marking.

“Weeks after” DOJ got the report on Trump’s properties in December, DOJ subpoenaed the folder in January.

Donald Trump’s lawyers turned over an empty manilla folder marked “Classified Evening Briefing” after the US justice department issued a subpoena for its surrender once prosecutors became aware that it was located inside the residential area of the former president’s Mar-a-Lago resort, two sources familiar with the matter said.

The previously unreported subpoena was issued last month, the sources said, as the recently appointed special counsel escalates the inquiry into Trump’s possible unauthorized retention of national security materials and obstruction of justice.


Weeks after the report was sent to the justice department, the sources said, federal prosecutors subpoenaed the folder.

Here’s the story Trump told to DOJ about the empty classified folder:

The backstory the justice department was told about the folder was that Trump would sometimes ask to keep the envelopes, featuring only the “Classified Evening Briefings” in red lettering, as keepsakes after briefings were delivered, one of the sources said.

It’s just some kink that Trump has, his lawyers want DOJ to believe, that he wants to have “Classified Evening Briefing” folders strewn around his personal residence.

It’s not entirely ridiculous. After all, just two days after the search of Mar-a-Lago, reporters found a folder just like that one at a shrine to the Donald in Trump’s Wine and Whiskey Bar in Manhattan.

There are several problems with this story, though.

Let’s review some chronology of Trump’s stolen document scandal. In May, Trump’s lawyer Evan Corcoran accepted a subpoena for all documents with classified markings at any Trump property. Trump stalled for almost a month, but then the day before Trump was set to leave for Bedminster, Corcoran told the FBI to come to Mar-a-Lago the next day to retrieve documents. On June 3, Jay Bratt showed up with some FBI agents, and Corcoran handed over a folder of documents — certified by Christina Bobb, not himself — and also showed the people from DOJ the storage room where many, but not all, of Trump’s presidential records were stored. Trump’s story does not match DOJ’s story about whether Trump interacted with Jay Bratt when the senior DOJ official was at Mar-a-Lago.

On June 24, DOJ subpoenaed surveillance footage that, subsequent reporting has made clear, showed Walt Nauta moving boxes out of the storage facility, thereby preventing Corcoran from finding the documents inside in the search he did in advance of June 3. Prior to obtaining the video, Nauta had testified that he didn’t move any documents; afterwards, he testified he had moved boxes to Trump’s residence.

Then, on August 5, DOJ obtained a warrant to search Mar-a-Lago. The affidavit for the search specifically mentioned Trump’s residence, “Pine Hall.” And the search warrant authorized the search of “the ’45 Office,’ all storage rooms, and all other rooms or areas within the premises used or available to be used by FPOTUS and his staff and in which boxes or documents could be stored,” which particularly given DOJ’s knowledge that Trump already had hidden stolen documents in his residence, surely would include the residence. In the weeks after the search, Trump claimed publicly that the FBI had searched Melania’s closet, implying that the FBI did search the residence. But the only way Trump would know what the FBI searched or not would be if those rooms were covered by his own surveillance camera.

Let’s assume, however, that the FBI did at least go through the residence closely enough to ensure no documents remained there after Nauta had stashed them there while Corcoran conducted a search.

The FBI seized no documents from the residence on August 8. Documents were seized from just the storage room (those marked with an “A-” preface on the search warrant return) and Trump’s office (those without).

One thing supports Trump’s claim that he took this — and all the other — empty classified folders, as well as 42 empty aide folders, as trophies. There were 43 empty classified folders and 28 empty aide folders in his leatherbound box, which also had the most sensitive documents. Particularly given the appearance of those documents in the photo the FBI released, it is not inconceivable that Trump stole them as trophies of some events he think reflect well on his presidency, just like he stole the Kim Jong Un letters.

Plus, by appearances, Trump stored those super secret documents right next to his Time Magazine covers. All of which supports his claim that he stole these items as trophies of his time as President.

But that’s not the only place the FBI found empty folders in their August 8 search. They also found them in five other boxes, all stored in the storage room.

With one exception — box A-33 — all the boxes with empty folders also had classified records, though mostly just one or two classified documents.

In other words, even indulging Trump’s excuse — that he stole these empty classified folders as keepsakes — that only explains one of the motives and means by which he stole them. It only explains the folders stored with his other trophies, in the leatherbound box. It doesn’t account for the fact that Trump also stole files that weren’t keepsakes per se, but were boxes of other records, among which some classified records remained. It doesn’t account for the fact that hoarding large amounts of documents, as Trump did, along with sloppy treatment of classified documents while in the White House, will result in the theft of classified documents. Along with some empty classified folders.

More importantly, the discovery of an empty classified briefing folder in his residence, which was not found during the no-notice search on August 8, but was found during the search for which Trump would have had advance notice, could not readily be explained by the kink trophy explanation.

Which is why this currently operative story — and the fact that Trump’s lawyers have decided to share it publicly now — should focus on the other investigative steps that took place in the same time.

Back in October, before Attorney General Garland appointed Jack Smith, Trump was reportedly still considering letting the FBI do a further search of his property, like Joe Biden and Mike Pence have since done. But then, probably after the appointment of Smith and the 11th Circuit ruling overturning the Special Master, Trump decided to have a private firm do the search instead. After the search of (some of) Trump’s properties — this probably happened at the end of November and beginning of December — the contractors provided an inventory to DOJ, which is how DOJ learned of the empty folder. Because Trump’s lawyers refused to certify the searches themselves, DOJ immediately tried to hold Trump in contempt for violating the May 11 subpoena. That request — to hold Trump’s lawyers in contempt — happened at the same time (around December 6) as a bunch of inconsistent stories serially revealed the search of four of Trump’s properties and, the stories claimed, the discovery of just two more classified documents.

We now know those stories were false, classic Trump limited hangout. Yesterday’s stories reveal that when Trump’s lawyers told journalists the search firm had only found two documents marked as classified in December, they were hiding the Trump calendars and the classified folder. They were lying to hide the stuff just revealed yesterday.

Beryl Howell did not make a final decision on contempt, though the same Trump lawyers also falsely told journalists she had made a final decision.

Then, after some back in forth, early in January, DOJ got Beryl Howell to require Trump to turn over the names of the people who did the search. That’s the first we learned that, contrary to the headlines you’d read based on the December 2022 stories, Howell had not made a final decision on contempt.

That’s all background to the mad set of stories yesterday, announced even as Pence admitted FBI found one more classified document at his house. It should tell you something that the leaks yesterday resemble the ones from December 7, when Trump’s lawyers told two lies: That Howell had already decided not to hold them in contempt, and that the search firm had found only two more classified documents. Based on past experience, we should assume yesterday’s stories, like the ones in December, had as their primary goal to tell a false story.

What we know, though, is that after attempting to hold Trump’s lawyers in contempt in early December, DOJ took steps that would be necessary preparation for interviewing the people who did the search. First, forcing Trump to share the names. Then, interviewing two of three lawyers involved in Trump’s obstruction last June, Evan Corcoran and Christina Bobb. And then, obtaining the things found in the search that weren’t immediately turned over as positive search results, which would be necessary preparation to interviewing those who did the search.

Trump told DOJ in December that this empty folder, which the FBI didn’t find when they showed up to MAL unannounced on August 8, 2022, had found its way to Trump’s residence in time for the contracted search, because he has an empty folder fetish.

He certainly does appear to have an empty folder fetish.

But that cannot explain why the folder — full or empty — was not found in August but was found in December.

I’ve updated my resource page on Trump’s stolen documents here.


May 11, 2022: Subpoena for all documents bearing classification marks

June 3: Corcoran hands over folder with 38 classified records

June 24: DOJ serves a subpoena for surveillance footage

July 6: Trump provides surveillance footage

October 19: Trump still considering letting FBI search his properties for further classified documents

November 18: Merrick Garland appoints Jack Smith Special Counsel

December 7: A series of inconsistent stories reveal, serially, the search of four properties and the discovery of just two more classified documents

Late 2022: DOJ reaches out to Alina Habba, who last summer claimed to have done a thorough search of Trump’s properties

December: Trump returns box of presidential schedules, which includes classified information

January 4, 2023: Beryl Howell orders Trump to turn over names of investigators to DOJ

Early January: Trump turns over aide’s laptop and DOJ subpoenas both empty folder and

Early January: Evan Corcoran and Christina Bobb appear before the grand jury

February 2: Tom Fitton appears before grand jury

February: Robert O’Brien subpoenaed for both stolen documents and attempted stolen election investigations

A Book Author, A Religious Leader, and A Pollster Walk into Trump’s Classified Document Bar

As noted, yesterday Trump took the opportunity created by news of an additional document with classification marks at Mike Pence’s house to make a series of disclosures. Lawyers found another empty classified document folder, marked Classified Evening Briefing, as well as a laptop and a thumb drive with a classified document on it. The latter, described here by CNN, has generated a really inflammatory response.

Former President Donald Trump’s legal team turned over more materials with classified markings and a laptop belonging to an aide to federal prosecutors in recent months, multiple sources familiar with the investigation told CNN.

The Trump attorneys also handed over an empty folder marked “Classified Evening Briefing,” sources said.

The previously undisclosed handovers – from December and January – suggest the protracted effort by the Justice Department to repossess records from Trump’s presidency may not be done.

The Trump attorneys discovered pages with classified markings in December, while searching through boxes at the former president’s Mar-a-Lago residence. The lawyers subsequently handed the materials over to the Justice Department.

A Trump aide had previously copied those same pages onto a thumb drive and laptop, not realizing they were classified, sources said. The laptop, which belonged to an aide, who works for Save America PAC, and the thumb drive were also given to investigators in January.

Pete Strzok, popularizing my nifty (and now outdated) table, raised a lot of predictable questions about the thumb drive and laptop.

He’s not wrong that these are the kinds of questions FBI will now be asking. All the more so given the ABC report that the laptop, at least, was not found at Mar-a-Lago.

ABC News has also learned that after the information was recovered, federal agents retrieved the laptop from the aide. The laptop was not retrieved on the Mar-a-Lago grounds, the sources said.

But the answers may be somewhat simpler, particularly if — as I suspect — Trump’s lawyers went and found this laptop as a response to one of the other most-pressing questions about Trump’s stolen documents.

After all, there must be some reason why Trump’s lawyers went to look for this document, after having investigators search Mar-a-Lago already. There must be a specific reason they were looking for these documents, given that investigators had done a seemingly thorough search of everything.

And Trump’s lawyers have no doubt been scrambling to answer one of the most important questions revealed in the Special Master review: who had compiled a document — after Trump left the White House — with a Secret and a Confidential document. That document was described in one of the last Special Master filings. It’s a document that includes messages from a book author, a religious leader, and a pollster, probably something from a lawyer, and what were upon seizure a Secret and a Confidential document.

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]

It was, as I’ve been describing, a mini-smoking gun: Two classified documents “compiled” with a bunch of documents that post-date Trump’s Administration, seeming proof that someone accessed classified documents after they were removed from the White House.

The mini-smoking gun is a political document: it includes a message from a pollster. But what FBI meant by a “compilation” was never clear: Was it just two classified documents paper clipped onto messages from a pollster, a religious leader, and a book author? Was this digitally compiled, in which case it might appear to be one 11-page document with passages that were classified?

What would have happened after DOJ and Trump’s lawyers agreed that the messages post-dated Trump’s presidency is that Trump’s lawyers would have scrambled to come up with a non-criminal explanation for the document.

And one possible story to explain it is the one Trump is now offering: an entire box of documents were scanned, and an aide  — CNN appears to know who she is — took copies, not knowing they were classified. And then the aide used the classified documents in her job at Trump’s PAC.

Both the removal of the document, including some classified documents, and this aide’s integration of the documents into some kind of political document, could both be unwitting, and therefore not a crime. Particularly if she were represented by lawyers paid for by Trump, as is his habit.

Given that FBI only found one document like this, the story is not implausible.

And it would answer the really pressing question of the “compiled” classified document (which Trump lawyers have undoubtedly treated as a very pressing question, given that this is a mini-smoking gun). And it would answer the question of why they were searching an aide’s laptop and thumb drive.

Only, if that’s Trump’s final answer — and it may well be! — then it will raise other questions. Such as why Trump had Presidential Records Act documents that he would go on to use for his PAC in the first place.

Particularly at a time when his fundraising is under scrutiny for the other criminal investigation of Donald Trump, the answer to that question might get awkward quickly.

Update: Here is the Guardian’s explanation for the aide and the laptop (none of which makes sense):

[A]t Mar-a-Lago in December, the contractors found a box that mainly contained presidential schedules, in which they found a couple of classified-marked documents to also be present and alerted the legal team to return the materials to the justice department, the sources said.

The exact nature of the classified-marked documents remains unclear, but a person with knowledge of the search likened their sensitivity to schedules for presidential movements – for instance, presidential travel to Afghanistan – that are considered sensitive until they have taken place.

After the Trump legal team turned over the box of schedules, the sources said, they learned that a junior Trump aide – employed by Trump’s Save America political action committee who acted as an assistant in Trump’s political “45 Office” – last year scanned and uploaded the contents of the box to a laptop.

The junior Trump aide, according to what one of the sources said, was apparently instructed to upload the documents by top Trump aide Molly Michael to create a repository of what Trump was doing while in office and was apparently careless in scanning them on to her work laptop.

When the Trump legal team told the justice department about the uploads, federal prosecutors demanded the laptop and its password, warning that they would otherwise move to obtain a grand jury subpoena summoning the junior aide to Washington to grant them access to the computer.

To avoid a subpoena, the Trump legal team agreed to turn over the laptop in its entirety last month, though they did not allow federal prosecutors to collect it from Mar-a-Lago.


“Classified Evening Briefing:” Mishandled and Stolen Documents Update

There has been a bunch of news in the various investigations into various constitutional officers who took documents home. Here’s my updated handy table.


On February 1, the FBI did a consensual search of President Biden’s Rehoboth home. No additional documents with classified marks were found, though the FBI did take some notes from Biden’s time as Vice President. Those kinds of notes are what I include among potential “trophy” documents, because they may reflect mementos.

NARA released information relating to Biden’s initial turnover of documents under FOIA. I assume they would have had to get DOJ’s permission to do so.


Mike Pence’s team announced that, after a consensual search of his Carmel, IN home, the FBI found one additional document with classification markings and six additional pages.

The FBI discovered an additional classified document at former Vice President Mike Pence’s Indiana home Friday during a voluntary five-hour search of the house, a Pence adviser said in a statement.

The adviser, Devin O’Malley, said “the Department of Justice completed a thorough and unrestricted search of five hours and removed one document with classified markings and six additional pages without such markings that were not discovered in the initial review by the vice president’s counsel.”

“The vice president has directed his legal team to continue its cooperation with appropriate authorities and to be fully transparent through the conclusion of this matter,” O’Malley said. He also noted that Pence and his legal team had “agreed to a consensual search of his residence that took place today.”

A source familiar with the search said DOJ was given unrestricted access to Pence’s home, and a member of his legal team was present through its duration.

The scope of the search included looking for documents that DOJ believed might be considered original documents that should have been sent to the National Archives, the source said, which could explain the six pages of additional material that were taken.

Given those six pages, I’ve changed the table to reflect possible “trophy” documents, things taken as keepsakes.

Pence has another weekend home in IN that has not been searched.


Trump may have used the news of Pence’s classified document as an opportunity to dump more news of his own. Multiple outlets reported that he had turned over:

  • An empty folder marked “Classified Evening Briefing”
  • Some additional classified files
  • The laptop and thumb drive onto which digital versions of those files were copied

Here’s how ABC described the new materials:

The folder with classification markings was discovered in a box with additional papers, the sources said. A copy of the box’s contents was made electronically, raising the question about the existence of any additional electronic records that may be relevant to the special counsel’s investigation.

ABC News has also learned that after the information was recovered, federal agents retrieved the laptop from the aide. The laptop was not retrieved on the Mar-a-Lago grounds, the sources said.

Given the position of the person reportedly involved — who works for Trump’s PAC — it is possible that this person is the one who did a “compilation” of messages from a pollster, a faith leader, a book author, with two classified documents, one Secret and one Confidential.

Separately, there have been reports of at least three witnesses who have testified in the stolen document case:

  • In the second week of January, Evan Corcoran appeared before the grand jury. He’s the one who did the search that happened not to find the 100 documents Trump had hidden.
  • Late last year DOJ reached out to Alina Habba (she is represented by the same lawyer who had represented Christina Bobb). Habba filed a declaration in a NYS case claiming to have done a diligent search of Trump’s property for subpoenaed documents.
  • On February 2, Tom Fitton appeared before the grand jury. Fitton, who is not a lawyer, gave Trump catastrophically stupid advice saying that a suit he filed against Bill Clinton that was unrelated meant Trump could just determine what documents he could keep.
  • Robert O’Brien was subpoenaed in both the stolen documents and the attempted stolen election case and is asserting Executive Privilege over some matters. O’Brien would know the circumstances by which Trump was briefed, so this could be a follow-up to items more recently turned over to DOJ.

The Trump-Biden-Pence Documents Story Is Not (Yet) about Overclassification

It is my belief that had Eric Holder appointed a Special Counsel to investigate David Petraeus’ hoarding of classified information, the retired General might have been charged with 18 USC 793(e) and maybe even 793(d).

That’s true, first of all, because the facts he admitted to as part of his wrist-slap plea largely cover the elements of the offense. That’s true, too, because everyone but Holder seemed to support charging Obama’s CIA Director. Ultimately, the decision would have remained Holder’s. Holder might have overruled a Special Counsel even still, as he is reported to have overruled prosecutors. Holder may have calculated that Petraeus’ years-long cultivation of Congress would mitigate any blowback for overriding the recommendation to prosecute.

Certainly Holder paid no price for making the decision he did make: Congress believed that Petraeus could do no wrong.

Instead, Petraeus is (with Sandy Berger) one of the two poster children for the premise that the powerful will never be held accountable for mishandling classified information the way lower ranking personnel will be. That could change with at least two Special Counsels involved.

Yet even as powerful as he was during the period he was leaking to his biographer, David Petraeus is still differently situated than Trump, Biden, and Pence, starting with the fact that even in his case, DOJ relied on his clearance and nondisclosure agreements to prosecute him.

By comparison, all three of the men currently under investigation were Original Classification Authorities under EO 13526, the Executive Order governing classification during the period in question. None of those men would ever have been required to get any security clearance beyond the courtesy clearance given to formers after their tenure (of which Trump was stripped). And so all of these men went from a status of near immunity while in office, instantly — at 12:00PM on January 20 — to having to sort through files in boxes to decide what he was permitted to take home and what he was obligated to turn over to the Archives.

That process was at least part of what went wrong in all three cases, even Biden’s possession of documents from when he was a powerful Senate Chair. One minute, they were virtually immune from rules pertaining to classification, and literally the next minute — before they had finished that sorting process! — they were subject to the rule of law again.

Indeed, because all three are explicitly subject to the Presidential Records Act, the basis by which they lack authorization to possess the documents in question stems, in significant part, from an entirely different basis than it does for other people, which arises from the clearances they were never required to get.

And that’s one reason why all the punditry (here, here, here, here) — almost all from people who haven’t followed the details even of the Trump case, where we’ve got the most facts available — claiming that this is a problem with overclassification is, at best, wildly premature.

Indeed, with Trump, we can say with some certainty that this is not about overclassification. The classification markings from the subpoena DOJ served on him, understood to be based in part on what they had already found in the boxes he turned over, are not trivial. Nor are the likely contents of the documents we see in the FBI picture of his stolen documents. Even some of the documents from the Russian investigation that Trump wanted to declassify and disseminate rely on either human source and/or intelligence collection targeting Russia’s spy service, and the reporting was just five years old at the time (a brand new must read from the NYT also reveals the intelligence came from the Dutch, so it wasn’t our intelligence to declassify).

These men were the President and Vice President. They had access to highly sensitive information, and Trump, at least, had a well-established history of releasing it with abandon.

Until we have evidence that the documents in question were simply materials that some agency was bigfooting (as was the case in most of the classification pertaining to Hillary’s emails), we should not assume this is about overclassification. There’s no evidence of that.

Chuck Rosenberg argues that it also should not matter.

One place we might see overclassification is in classification reviews of the hand-written notes that both Trump and Biden took, though even there, Trump was reportedly waving around his private love letters with a nuclear-armed dictator as a party trick, and that probably did have the ability to make it harder to manage a very difficult threat. But with Trump, at least, the possibility that some of his hand-written notes won’t turn out to be as sensitive as the spooks will declare them doesn’t mitigate that he had documents that are almost certainly unbelievably sensitive sitting in a beach resort known to be targeted by intelligence services.

Thus far, we have no evidence that this is about overclassification. We do have abundant evidence that these three specific compromises have to do with the wacky way Presidents and Vice Presidents (and to a lesser degree, Members of Congress) operate outside the system of clearances that leads virtually everyone else with access to classified information to exercise a great deal of caution when handling it. One day they’re immune, the next day they’re sorting documents to try to sort out what needs to go to the Archives.

That’s a different problem than overclassification.

Crazier still, most of the people who are out there claiming this about overclassification are using (at least partly) as their examples people who sought out documents that were not part of their work and then leaked those documents. Those cases are also not about overclassification.

And amid all the talk of overclassification, none of the pundits have mentioned a case that is a far more apt example of overclassification and the way the Executive uses classification to punish people: Jeremy Brown, the Oath Keeper recently found guilty of unlawfully retaining — right next to some grenades for which he was also convicted — one document that Brown wrote himself in 2011, classified Secret, believed to be about the Bowe Bergdahl case.

Brown was acquitted on 793 charges for four other documents, also classified Secret, that were even older.

Brown’s case in many ways parallels Trump’s. Like Trump, the Feds showed up and asked him to return the document and he lied to hide it. Like Trump, the FBI found the documents with a warrant.

But it’s far more likely these documents, all of which were at least ten years old, are overclassified.

Don’t get me wrong: I think Brown is a dangerous shithole. I’m not unhappy he’s going to prison.

I also think DOJ believed, correctly, they could use these classified documents (along with the grenades) as a way to neutralize a dangerous loose canon.

Want to make a case about overclassification? Jeremy Brown is the dangerous shithole you should be defending. Want to prevent the grave disparities in how powerful people are treated, as compared to dangerous shitholes like Jeremy Brown?

You need to address that magic process by which Presidents are treated with immunity and then — in an instant!! — purportedly subjected to the same rules as everyone else.

“Why Did Mike Pence Wait So Long to Reveal His Stash of Classified Documents?”

At a press availability yesterday, Merrick Garland repeated a line he often uses, that DOJ applies the law the same for everyone.

“We do not have different rules for Democrats or Republicans, different rules for the powerful or the powerless, different rules for the rich and for the poor, we apply the facts, and the law in each case in a neutral, non-partisan manner,” Garland told reporters during a press availability at Justice Department headquarters. “That is what we always do.”

Many of the reporters covering it treated it as a comment about DOJ’s handling of the Trump and Biden classified document inquiries. Maybe it was.

Little did anyone know, though, that Garland might well have had the FBI’s collection of about a dozen documents with classified markings from Mike Pence’s home in mind.

Greg Jacob first told the Archives about the documents on January 18, six days ago and two days after the search. The next day, the FBI arrived in Indiana to collect the documents, which Jacob complained was against standard protocol. Yesterday Pence’s staff delivered several boxes to the Archives to check for adherence to the Presidential Records Act.

I don’t much care that Pence didn’t immediately run to the press to announce the documents, but it is the kind of thing that journalists who are good at horse race coverage, unaware of many of the thus-far distinguishing details about the Trump documents, and ill-equipped to cover classified documents stories latched onto with Biden.

So in an effort to provide some structure for the kids-chasing-a-soccer-ball-like coverage we’re already seeing, here’s a table that summarizes what we know and don’t know about all three cases.

Until we have answers about some of the details that currently distinguish Biden and Pence from Trump — like whether they knew of the documents (both claim they did not), whether they ever accessed the documents after leaving office, whether we have reason to believe they’re harboring more — this should not be a story.

And the key difference, one that should be included in every story that tries to make such a comparison, is that Trump refused to give documents back, whereas Biden and Pence freely offered them up.

The reason that’s important, aside from the both sides drama of it, is that it is an element of the offense that would be most likely to be used if DOJ took the unprecedented step of charging a former Original Classification Authority with harboring classified documents.

As we can now see, it happens that men who have aides pack them up at the end of their tenure go home with documents they didn’t know they had. It happens. (By the time Kamala Harris leaves, there’s likely to be a new protocol in place, so Harris can set a perfect record as the first woman being packed up.) What matters — what distinguishes a mistake from a potential crime — is what you do with the documents when you become aware you have them.

It’s possible we’ll learn details that suggest Biden knowingly stashed classified documents. But thus far, we don’t have any such details. And that should — but thus far has often not — show up in any competent coverage.

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.

Why Trump’s Lawyer, Evan Corcoran, Says Joe Biden Couldn’t Violate 18 USC 1924

My Twitter feed continues to be inundated by a bunch of experts on the latest talking point telling me why Joe Biden violated the law.

He may have. We don’t know the circumstances surrounding the documents found at his home. Based on what we know, it’s far less likely that Biden broke the law than Trump. But we don’t know.

Virtually all those parroting the latest talking point are misunderstanding the likely law in question — 18 USC 793e, the same law in question with Trump — and how classification works with a former President or Vice President.

Maybe I’ll get into that at more length in days ahead, but for now, I wanted to lay out what Trump, in the voice of his lawyer Evan Corcoran, says about whether Biden could be charged.

Corcoran addressed many of the questions my Twitter experts have shared in a letter sent to Jay Bratt, DOJ’s head of counterintelligence, last May.

First, Trump — in the voice of Corcoran — says if a former President (a Vice President is also a Constitutional Officer) has voluntarily returned documents to the Archives, there should be no leaks about it.

There have been public reports about an investigation by DOJ into Presidential Records purportedly marked as classified among materials that were once in the White House and unknowingly included among the boxes brought to Mar-a-Lago by the movers. It is important to emphasize that when a request was made for the documents by the National Archives and Records Administration (NARA), President Trump readily and voluntarily agreed to their transfer to NARA. The communications regarding the transfer of boxes to NARA were friendly, open, and straightforward. President Trump voluntarily ordered that the boxes be provided to NARA. No legal objection was asserted about the transfer. No concerns were raised about the contents of the boxes. It was a voluntary and open process. Unfortunately, the good faith demonstrated by President Trump was not matched once the boxes arrived at NARA. Leaks followed. And, once DOJ got involved, the leaks continued. Leaks about any investigation are concerning. Leaks about an investigation that involve the residence of a former President who is still active on the national political scene are particularly troubling.

So Trump, in the voice of Corcoran, should be outraged that CBS broke this story before the White House or Attorney General revealed it.

Corcoran says that those vested with constitutionally-based authority to classify and declassify documents have unfettered authority to declassify documents, an argument that Trump still pretends he hasn’t waived both before at least three courts, SDFL, the 11th Circuit, and SCOTUS.

(1) A President Has Absolute Authority To Declassify Documents.

Under the U.S. Constitution, the President is vested with the highest level of authority when it comes to the classification and declassification of documents. See U.S. Const., Art. II, § 2 (“The President [is] Commander in Chief of the Army and Navy of the United States[.]”). His constitutionally-based authority regarding the classification and declassification of documents is unfettered. See Navy v. Egan, 484 U.S. 518, 527 (1988) (“[The President’s] authority to classify and control access to information bearing on national security … flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant.”).

Now, in reality, the authority of the President is not entirely unfettered. As we discussed last fall, nuclear documents require additional people to declassify.

But here’s the thing: There’s good reason to believe that the Vice President has the same authority to declassify documents that the President does.

To the extent that classification is constitutionally tied to Article II authority, it is governed by Executive Order. The Executive Order that governed classification for the entirety of the Trump Administration, and still governs classification, treats the Vice President on par with the President. The EO that governs classified information gives the Vice President the same original classification authority it gives the President, which is where the authority to declassify comes from.

(a) The authority to classify information originally may be exercised only by:

(1) the President and the Vice President;

The language on post-tenure access (which Trump later invoked in arguments before the 11th Circuit) also applies to the Vice President in the same way as the President.

(a) The requirement in section 4.1(a)(3) of this order that access to classified information may be granted only to individuals who have a need-to-know the information may be waived for persons who:


(3) served as President or Vice President.

(b) Waivers under this section may be granted only if the agency head or senior agency official of the originating agency:

(1) determines in writing that access is consistent with the interest of the national security;
(2) takes appropriate steps to protect classified information from unauthorized disclosure or compromise, and ensures that the information is safeguarded in a manner consistent with this order; and
(3) limits the access granted to former Presidential appointees or designees and Vice Presidential appointees or designees to items that the person originated, reviewed, signed, or received while serving as a Presidential or Vice Presidential appointee or designee.

Biden could access stuff from when he was Vice President, but he’d have to do so at the Archives and get a waiver first (a waiver that Biden had after his term but Trump, because of a decision by Biden, did not).

Now, to be clear, none of this has been tested. Much of this language is a legacy of changes in a prior EO that Dick Cheney oversaw in March 2003, which were key in the Valerie Plame investigation.

Some of that is covered in this post I did in 2017, in which I asserted that Mike Pence had declassification authority.

But the fact of the matter is that Joe Biden could say, if he were ever charged, that his understanding is that his authority to classify and declassify as Vice President was the same as the President’s, and over the entire four years of the Trump Administration, Trump did nothing with his unfettered authority to change that (nor has Biden since).

In reality, Trump didn’t declassify these documents, nor did Biden. Trump has now waived his opportunity to claim he declassified these documents legally repeatedly. (Biden could have legally declassified them when he found them; instead he returned them to the Archives.)

But there’s good reason to believe that Corcoran’s arguments about Trump — for the little they’re worth — would apply equally to Biden as to Trump, thanks, in part, to Dick Cheney.

How about them apples, huh?

By far the most interesting argument Corcoran makes, though, is that the statute that most Twitter experts think is at issue, 18 USC 1924, cannot apply to the President, because the President — like the Vice President — is not an “officer” appointed by the President.

(2) Presidential Actions Involving Classified Documents Are Not Subject To Criminal Sanction.

Any attempt to impose criminal liability on a President or former President that involves his actions with respect to documents marked classified would implicate grave constitutional separation-of-powers issues. Beyond that, the primary criminal statute that governs the unauthorized removal and retention of classified documents or material does not apply to the President. That statute provides, in pertinent part, as follows:

Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than five years, or both. 18 U.S.C. § 1924(a).

An element of this offense, which the government must prove beyond a reasonable doubt, is that the accused is “an officer, employee, contractor, or consultant of the United States.” The President is none of these. See Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 497-98 (2010) (citing U.S. Const., Art. II,§ 2, cl. 2) (“The people do not vote for the ‘Officers of the United States.”‘); see also Melcher v. Fed. Open Mkt. Comm., 644 F. Supp. 510, 518-19 (D.D.C. 1986), aff’d, 836 F.2d 561 (D.C. Cir. 1987) (“[a]n officer of the United States can only be appointed by the President, by and with the advice and consent of the Senate, or by a court of law, or the head of a department. A person who does not derive his position from one of these sources is not an officer of the United States in the sense of the Constitution.”). Thus, the statute does not apply to acts by a President. [my emphasis]

Corcoran made what could be a grave error with this legal analysis, which I’ll get to, but it’s not necessarily in his read about Constitutional officers.

In fact, DOJ seems to agree with Corcoran that Trump’s actions — taking classified documents home at the end of his term and keeping them — are not covered by this law. It was not among the crimes for which they had demonstrated probable cause on Trump’s search warrant affidavit.

It may be DOJ believes that because they agree with Corcoran, that Constitutional Officers who are elected directly by voters are not subject to this law.

It may also be that they believe that because it is routine for Presidents and Vice Presidents, when leaving office, to remove their papers from their official residences and offices and then sort through the stuff they have to send to the Archives. A CNN report describes that Biden, like Trump, didn’t wrap up his office until the last minute (though for different reasons — Trump didn’t because he was still trying to cling to power, whereas Biden didn’t because he was still working). The result was the same, though: the process was rushed and disorderly.

That is, it is possible that the removal of documents at the end of an Administration is not, per se, considered criminal because of how White Houses transition.

Whatever it is, there is nothing about the known fact set about Biden that would make this law apply to Biden if it did not with Trump. Both are believed to have retained stuff they took with them when they left their offices in a hurry.

If 18 USC 1924 cannot apply to Trump, like Evan Corcoran said, then it cannot apply to Biden.

I said, above, that Corcoran may have made a grave error in his analysis. That’s because he didn’t consider whether 18 USC 793, the law we know is under investigation, could apply to a former President (or Vice President). And that appears to have led him to give Trump really bad advice, allowing him to refuse to give back classified documents when asked.

That is a crime.

Taking classified documents unknowingly is probably not a crime, especially for a President or Vice President. Refusing to give them back may well be. That’s the question before Jack Smith, as well as the obstruction question. That’s probably the question before Robert Hur.

How about them apples, huh?

There’s one more interesting thing Corcoran said in his letter. He demanded that DOJ adhere to the White House contact policies that were routinely violated under the Trump Administration.

(3) DOJ Must Be Insulated From Political Influence. According to the Inspector General of DOJ, one of the top challenges facing the Department is the public perception that DOJ is influenced by politics. The report found that “[o]ne important strategy that can build public trust in the Department is to ensure adherence to policies and procedures designed to protect DOJ from accusations of political influence or partial application of the law.” See https://oig.justice.gov/reports/top-management-and-performance-challengesfacing-depatiment-justice-2021 (last visited May 25, 2022). We request that DOJ adhere to longstanding policies and procedures regarding communications between DOJ and the White House regarding pending investigative matters which are designed to prevent political influence in DOJ decision-making.

He’s not wrong that those contact policies should be upheld. And whatever else you think about Merrick Garland’s decision to appoint for John Lausch and then Robert Hur to investigate this, the necessity to uphold contact policies, to which Garland has (as far as is public) adhered to rigorously, is a really good reason to appoint a Special Counsel (and, for that matter, for the White House to be very reserved about its public comments). Trump’s favorite way of violating the contact policy was to Tweet something that would, fairly routinely, be followed almost immediately by DOJ taking action, including on criminal cases (most notably with Roger Stone’s).

Indeed, Biden’s people have said that one reason they have not issued more public comments was in an attempt to avoid even appearing to influence the process.

They should revert to that stance, in my opinion, and point to Evan Corcoran’s letter as authority to do so.

Evan Corcoran said a lot of things. He’s not a national security expert though, so if I were Biden, I wouldn’t rely on it.

But we should be able to rely on his argument that Trump doesn’t think that Biden should be charged, at least not with 18 USC 1924.

Merrick Garland Appoints a Special Counsel in Biden Documents Case

Given the discovery of two sets of documents at Joe Biden’s house, Merrick Garland has appointed former Maryland US Attorney Robert Hur as Special Counsel to investigate that case.

I don’t think this is a bad thing. It will eliminate any claim of bias and ensure a report can be filed at the end. And it will stave off GOP interference in the case.

Garland described the following timeline.

November 4: NARA informs DOJ of the documents

November 9: FBI conducts an assessment to understand whether classified information was mishandled

November 14: Garland assigned US Attorney Lausch to conduct initial investigation

December 20: Biden’s counsel informed Lausch of additional documents in the Wilmington garage

January 5: Lausch briefed Garland of initial investigation and recommended further investigation

January 11: Biden informed Lausch of an additional document from Biden’s personal residence

Update: Hur’s statement:

I will conduct the assigned investigation with fair, impartial, and dispassionate judgment. I intend to follow the facts swiftly and thoroughly, without fear or favor, and will honor the trust placed in me to perform this service.


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.