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Trump’s Defense: He Intended to Steal Boxes and Boxes of Classified Documents

As I have been noting for months, in all of Jack Smith’s rebuttals to Trump’s claims that Presidents have absolute immunity, he floated scenarios that are pretty similar to stuff that Trump is known or suspected of doing.

One of those is, “a president who sells nuclear secrets to a foreign adversary.”

As I noted in response to Trump’s claim that that would be treason, Trump has done a whole lot that’s improper with classified information.

The closest thing on that list to treason is selling nuclear secrets to America’s adversaries. Not treason.

But Trump’s lawyers, including two of the lawyers representing him in the stolen documents case, lawyers who had their first good look at the documents Trump is accused of stealing last week, seem to suggest it could be.

To be clear: Trump has never been accused of selling nuclear secrets to America’s adversaries.

He undoubtedly gave Israel’s counterterrorism secrets to Russia — why, and whether there was a quid pro quo involved, we still don’t know.

He is known to have Tweeted out highly sensitive satellite information to dick-wag Iran, with the result that Iran learned about the satellites targeting their country.

To spite Mark Milley, he showed a plan to attack Iran to Mark Meadows’ ghost writers.

Ongoing reporting, first from ABC and then from NYT, reveals that after Australian billionaire Anthony Pratt paid millions for access to Trump, Trump shared details of a conversation he had about a call he had with Iraq’s president after bombing Iraq, described his perfect phone call with Volodymyr Zelenskyy, and provided sensitive details of America’s nuclear subs.

And he is accused of leaving nuclear documents — documents that Trump’s lawyers may have reviewed for the first time last week — in unsecure ways at his beach resort, possibly even in his gaudy bathroom.

So, no. Trump has not (yet) been accused of selling nuclear secrets, to adversaries or anyone else. Though he did give away what he claimed to be nuclear secrets to a businessman from an allied nation after the guy paid a lot of money for access to Trump.

But as I noted, we don’t yet know what happened to some of the secret documents that Trump snuck away from Mar-a-Lago after hiding them from Evan Corcoran in June 2022, documents he took with him to host a golf tournament the Saudis paid an undisclosed sum to host at Bedminster.

Those documents have never been located.

Just so long as Trump didn’t sell any of these nuclear documents, but instead gave them away, I’m sure we’re all good.

That’s important background to Trump’s primary defense in his stolen documents case. Between his motion to dismiss because the Presidential Records Act doesn’t say what he claims it says and his motion to dismiss for absolute immunity, he is arguing that he intended to steal boxes and boxes of classified documents.

The latter argument is substantially the same garbage argument Trump has made to the DC Circuit and SCOTUS. The former is a real piece of work, even by Trump’s standards. Here his argument:

  • Before the Presidential Records Act was passed, Presidents treated presidential papers — which are different from government classified documents — as their personal property
  • Because NARA had no authority, after Bill Clinton left office, to reclassify tapes of personal conversations Clinton made so Tom Fitton could have them, it means NARA has no authority over what counts as a presidential or personal record
  • Bill Clinton’s personal tapes are exactly the same as the boxes and boxes of official documents Trump sent to Mar-a-Lago
  • Without providing any evidence Trump did classify all those official documents as personal documents, he will nevertheless claim he did so while still in office
  • Robert Hur’s report describing seizing all of Joe Biden’s diaries — which are specifically excluded from the PRA — is proof that Presidents control all official documents they stash away
  • Cmon, Judge Cannon, you made the ridiculous argument I own these documents once already, only to have the 11th Circuit rip you a new asshole, but why can’t you make precisely that argument again?
  • Charging Trump for actions he took after leaving the White House is the same as supervising his actions day-to-day
  • Because DOJ declined to second-guess Mark Meadows’ spectacular failure to declassify documents Trump wanted to give to John Solomon, it means DOJ must accept Trump’s vague assertion that he didn’t spectacularly fail to declassify boxes and boxes of documents either
  • These boxes and boxes of official documents, which are not excluded from the PRA, are just like Reagans diaries, which are specifically excluded
  • Clinton’s conversations about official stuff are just the same as the official documents documenting that kind of stuff
  • Because NARA had never made a criminal referral before February 2022, the fact that it has since made two means it couldn’t make any
  • Trump didn’t think he’d get busted, so it was improper for FBI to bust him
  • DOJ should have dealt with me like they did with Peter Navarro when he also blew off the PRA
  • Because DOJ refused to seize unclassified personal Clinton recordings so Tom Fitton could have them, it means DOJ could not seize classified official documents so NARA could have them

Ultimately, though, the two arguments together are very simple. First, from the PRA filing, Trump intended to take those boxes and boxes of classified documents.

The Special Counsel’s Office concedes that the “genesis” of this case dates back to at least “the tail end of the Trump Administration itself.” Compel Oppn. at 3.2 The Office alleges in the Superseding Indictment that President Trump “caused scores of boxes, many of which contained classified documents, to be transported” to Mar-a-Lago. ECF No. 85 ¶ 4 (emphasis added). The Superseding Indictment makes clear that this decision and the related transportation of records occurred while President Trump was still in office. Id. ¶ 25 (alleging that President Trump caused boxes of records to be packed and shipped “[i]n January 2021, as he was preparing to leave the White House” (emphasis added)). President Trump departed the White House prior to “12:00 p.m. on January 20, 2021,” and as such he is alleged to have made these decisions concerning the documents at issue while he was the Commander-in-Chief. Id. ¶ 4.

And, from the immunity filing, because Trump stole those boxes and boxes of classified documents while he was still Commander-in-Chief, he has immunity from prosecution for doing so.

Specifically, President Trump is immune from prosecution on Counts 1 through 32 because the charges turn on his alleged decision to designate records as personal under the Presidential Records Act (“PRA”) and to cause the records to be moved from the White House to Mar-a-Lago. As alleged in the Superseding Indictment, President Trump made this decision while he was still in office. The alleged decision was an official act, and as such is subject to presidential immunity.

[snip]

Even if the Special Counsel’s Office could establish that President Trump’s designation decision under the PRA was illegal or otherwise improper—and they cannot—“the President’s actions do not fall beyond the outer perimeter of official responsibility merely because they are unlawful or taken for a forbidden purpose.” Blassingame, 87 F.4th at 14. The Supreme Court has so held, repeatedly. After all, every claim of immunity is raised against charges of allegedly improper motive or purpose. See, e.g., Fitzgerald, 457 U.S. at 756 (rejecting a rule that would permit “an inquiry into the President’s motives” as “highly intrusive”); Pierson v. Ray, 386 U.S. 547, 554 (1967); Barr v. Matteo, 360 U.S. 564, 575 (1959) (“The claim of an unworthy purpose does not destroy the privilege.” (citation omitted)); Spalding v. Vilas, 161 U.S. 483, 498 (1896) (holding that immunity does not turn on “any personal motive that might be alleged to have prompted his action”); Bradley v. Fisher, 80 U.S. 335, 354 (1871) (holding that immunity “cannot be affected by any consideration of the motives with which the acts are done”); see also, e.g., Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) (Hand, J.). In short, in assessing whether immunity applies, courts must look to the “nature of the act itself.” Stump v. Sparkman, 435 U.S. 349, 362 (1978). The allegedly improper manner or purpose of the alleged acts is not relevant. Fitzgerald, 457 U.S. at 756. Therefore, President Trump is entitled to immunity for this official act and that must include immunity from criminal prosecution.

This is, quite literally, an argument that it was totally legal for Trump to choose to steal boxes and boxes of classified documents.

Robert Hur Snooped Through Joe Biden’s Diaries after White House Warned It Would Be Unprecedented

Much of the press focus (Politico, NYT, WaPo) on the correspondence between Joe Biden’s lawyers and DOJ has focused on Biden’s complaints about Robert Hur’s old geezer comments.

But a September 2023 letter (published by WaPo) regarding the way Robert Hur snooped through Biden’s diaries, which Hur called notebooks to excuse his own prurience, is actually far more troubling.

The letter asserts, then substantiates, a claim that, “at no time in the last thirty years has the Government, including the Department, viewed as actionable the possibility of classified information in the individual writings of a former President or Vice President.”

It describes what happened with Biden’s diaries:

  • January 20, 2023: Hur seizes Biden’s personal diaries and notebooks
  • February 27, 2023: Stuart Delery writes letter noting that DOJ, courts, and Congress have recognized the unique status of presidential and vice-presidential writings
  • Hur reviews diaries in their entirety without prior review by the White House Counsel’s Office
  • Hur sends selections for “classification review” by the Intelligence Community
  • October 8-9, 2023: Hur questions President Biden in the context of a criminal investigation about these materials

It then goes through the record, showing how the government found classified information in not just Reagan’s, but also Poppy Bush’s diaries, as part of Iran-Contra, but didn’t do anything about the diaries themselves outside the context of the focus on Iran-Contra.

It then goes through the publication history of Jimmy Carter’s diaries and memoirs from George W. Bush, Dick Cheney, Barack Obama, and Mike Pence to suggest they had used memorializations to write books that had classified information in them when first submitted to National Security Council for discretionary review.

The description of what happened with Pence’s memoir is most telling. In the very same weeks when Hur was blowing off a letter from Stuart Delery telling him no one had done this before, DOJ’s investigation of Mike Pence made no apparent move to do the same with any notes he used to write his memoir.

Former Vice President Mike Pence published his own memoir on November 15, 2022. Mike Pence, SO HELP ME GOD (2022). Even though Mr. Pence, as a Vice President, had not signed any agreement requiring pre-clearance review, he voluntarily submitted his manuscript to the NSC prior to publication for review for classified information.

Emmet Flood of Williams & Connolly submitted the manuscript to the NSC in June 2022. Ryan Cole, an Indiana writer, was copied on correspondence. We are unaware of whether these two individuals possessed security clearances at the time, or whether draft manuscripts were handled in accordance with security protocols for classified information, but the manuscript was not sent to the NSC under the requirements for transmitting classified materials.

The NSC review resulted in a number of proposed redactions of presumably classified information, which Vice President Pence and his team accepted to the manuscript before it was published.

Two months after the publication date, Vice President Pence’s attorneys discovered classified government documents in his home in Indiana, and the National Archives was notified two days later. Katherine Faulders et al., FBI finds Another Classified Document in Search of Former Vice President Mike Pence’s Indiana home, ABC NEWS (Feb. 10, 2023). A consent search of the home was conducted by Federal Bureau of Investigation agents on February 10, 2023, during which an additional classified document was found and “six additional pages” were also seized. Id. It is unclear the nature of the additional pages. We do not know whether the agents searched for drafts of the manuscript that the NSC had determined contained material that needed to be redacted.

But one thing is clear: the manuscript prepared by Mr. Pence with the help of Mr. Cole and Mr. Flood, which presumably also was reviewed by the publishers at Simon & Schuster, contained material that the NSC required to be redacted. Yet, even including the later search for classified documents, we know of no law enforcement inquiry into this writing.

Hur might retort that Trump’s notes got seized in 2022, along with marked classified documents and a whole shit-ton of other documents that belong to the archives under the Presidential Records Act.

But there’s no public hint that Jack Smith assessed those for criminal exposure. There’s just one document charged against Trump, in any case, that has neither date nor classified markings, such that it might be a note.

There’s an unstated reason why Hur’s obstinance about treating Biden’s diaries differently than other prosecutors before him: because when he was making the decision to snoop through all of Biden’s diaries, Biden was under investigation for a crime that was never going to get charged, but his son was under investigation for crimes that — under Hur’s former colleagues and subordinates in the Maryland US Attorney’s Office — did end up getting charged, probably only because one of them reneged on a diversion and plea deal because an FBI informant empowered by Bill Barr attempted to frame Biden and his son. Hur’s descriptions of Biden’s diaries, which he describes to “include[] gut-wrenching passages about his son’s death and other highly personal material,” make it pretty clear they include information that could be detrimental to Hunter. In fact, it’s not yet clear whether DOJ has returned Biden’s diaries, or whether they’re still treating him differently, even as Hur’s former subordinates use pictures of sawdust to try to convict Hunter Biden.

It’s really hard to treat Hur’s decision to treat Biden differently as anything else but an attempt to snoop through Biden’s diaries in search of other dirt.

And he did that in spite of fairly compelling arguments that he was doing something unprecedented.

Update: Bob Bauer wrote a Lawfare piece debunking some claims made by Ben Wittes that gets at the diaries distinction.

In Advance of Robert Hur Hit Job, DOJ Updated Public Identification Policy

As Politico and NYT reported, there has been a fair amount of back and forth between lawyers for President Biden, Richard Sauber and Bob Bauer, and Bradley Weinsheimer, the career DOJ employee that Merrick Garland has put in the center of matters pertaining to Special Counsels.

I’ll come back to those more generally.

But I wanted to call attention to a particular part of the exchange. In a February 8 letter responding to a letter Biden’s attorneys sent to Merrick Garland, Weinsheimer excused Robert Hur’s gratuitous swipes at Biden this way:

Your claim that Special Counsel Hur inappropriately commented on uncharged conduct is misplaced. As an initial matter, as described above, rather than commenting on uncharged conduct, Special Counsel Hur was applying the evidence he gathered to the applicable law. While Department policy advises Department employees to exercise caution when describing uncharged conduct, the policy also provides that when considering a statement about uncharged individuals, deciding officials should consider whether public disclosure may advance a significant law enforcement interest, including [1] upholding the integrity of the investigation, and [2] whether the public has a significant need to know the information. [my emphasis and bracketed numbers]

As Biden’s attorneys described in their February 12 response, Weinsheimer’s response confused them at first, because they didn’t recognize the reference.

Then they found it in what they call “a recent addition to the Justice Manual.”

Finally, your letter also defends Special Counsel Hur’s comments by describing Department policy that, in your words, “provides that when considering a statement about uncharged individuals, deciding officials should consider whether public disclosure may advance a significant law enforcement interest, including upholding the integrity of the investigation, and whether the public has a significant need to know the information.” You did not provide a citation for this reference, and we were puzzled at its use as a defense of Special Counsel Hur’s conduct since we were unfamiliar with this language. Our uncertainty about the provenance of this reference and its applicability in this case was justified when we discovered that it appears to stem from a recent addition to the Justice Manual that has nothing to do with prosecutorial comments about uncharged conduct. That provision, Justice Manual 9-27.760, addresses whether it is appropriate to identify “by name or unnecessarily specific description” an uncharged party. It does not speak to appropriate “statements about uncharged individuals,” as you state. [my emphasis]

That got me looking for this “recent addition.”

Lo and behold, this month, February 2024, DOJ added a bunch of new language to the section of the Justice Manual describing “9-27.760 – Limitation on Identifying Uncharged Parties Publicly” (see the precursor). In addition to tweaking its applicability from those “officially” charged to those “publicly” charged, it added a bunch of new language. That language requires approval from a US Attorney, Assistant Attorney General, “or their designee,” before identifying someone in prosecution filings or a declination. It lists factors to consider.

For the same reasons, following the conclusion of a case (whether by closing of an investigation or conclusion of a prosecution), DOJ personnel should not publicly disclose the identity (either by name or unnecessarily specific description) of uncharged parties absent approval of the United States Attorney or Assistant Attorney General, or their designee. When evaluating whether to grant approval, the United States Attorney or Assistant Attorney General, or their designee, may consider factors such as:

  • The privacy, safety, and reputational interests of uncharged parties;
  • The potential effect of any statements on ongoing criminal investigations or prosecutions, see JM 1-7.6001-7.610;
  • Whether public disclosure may advance significant law enforcement interests, such as where release of information is necessary to protect public safety or uphold the integrity of the law enforcement investigation; and
  • Other legitimate and compelling governmental interests, including whether the public has a significant need to know the information.

Public statements concerning the identity of uncharged parties following the conclusion of a case are permissible only if the legitimate and compelling government interests served, including law enforcement interests, substantially outweigh the privacy and reputational interests of the uncharged parties. To the extent a public statement regarding uncharged parties meets this standard and is otherwise permitted by law, such disclosure must be limited to the extent necessary to advance the government interests served by the disclosure.

Significant justification for identifying uncharged parties commonly exists where it is ordered by the Court, is necessary to protect the integrity of the case, or assists the government in meeting its burden of proof. In these instances, the use of generalized terms or descriptions may be unfeasible or insufficient or may create confusion or false impressions for the judge or jury. For example, in conspiracy trials, the identity and conduct of uncharged parties are often highly relevant to the government’s case, and it is not feasible to shield that individual’s identity in proving the case. In such instances where significant justification exists relating to court proceedings and pleadings, prior approval by the appropriate United States Attorney or Assistant Attorney General is not necessary.

[updated February 2024] [my emphasis]

As Sauber and Bauer note, this section is not about whether you can call someone a doddering old man in a declination statement, it’s about whether you can name someone who has not been in a declination statement at all (for example, Hur named some, but not all, of the people interviewed in his report, including Biden’s ghost writer, who was already facing hacking threats). It simply is inapplicable.

But I find it just as interesting that Weinsheimer used language that could only have predated the draft report by days if not hours (the White House had reviewed and responded to the report by February 5). And he took that as permission to attack the doddering old man, rather than a restriction on doing so.

Frankly, I’m unsympathetic to some of the White House concerns. The report was and should have been made public. That’s not the problem.

The problem is it’s a shitty report that gets the law wrong, uses a political lens to assess key details (like Hur’s distinction between Ronald Reagan’s “diaries” and Biden’s “notebooks”), and takes unncessary swipes at Biden.

I think it was equally inappropriate for Hur to compare Biden’s conduct with Trump’s. That’s not his job, and having botched the analysis of 18 USC 793(e) (not to mention missed that unlike Biden, Trump had been cut off from classified briefings after leaving office), his comparison is useless.

Weinsheimer seems to be suggesting it was cool for Hur to attack the doddering old man and weigh in on an investigation he’s not involved in to defend his own failed prosecution. He’s fooling himself if he thinks this reassures the public.

How Merrick Garland Mistook a Trump Hitman for a Career Prosecutor

When Merrick Garland appointed Robert Hur to spend a year reading through Joe Biden’s diaries, he emphasized that Hur was a career prosecutor, even while describing the role his appointee had played as Rod Rosenstein’s Principal Associate Deputy Attorney General (PADAG) and then as a Trump-nominated, Senate-confirmed, US Attorney.

Mr. Hur has a long and distinguished career as a prosecutor. In 2003, he joined the Department’s Criminal Division, where he worked on counterterrorism, corporate fraud, and appellate matters. From 2007 until 2014, Mr. Hur served as an Assistant U.S. Attorney for the District of Maryland, where he prosecuted matters ranging from violent crime to financial fraud. In 2017, Mr. Hur rejoined the Department as the Principal Associate Deputy Attorney General. In 2018, he was nominated and confirmed to serve as the U.S. Attorney for the District of Maryland. As U.S. Attorney, he supervised some of the Department’s more important national security, public corruption, and other high-profile matters. [my emphasis]

In my opinion, the vast majority of Merrick Garland’s critics mistake this — Garland’s naive belief in the good faith of people who have been DOJ employees — for a kind of caution or partisanship. Garland simply believes, I think, that something about working for DOJ rubs off on people and stays there, even the people who did scandalous things during Trump’s term. This is not the only time that faith has or could result in really grave consequences for DOJ’s ability to hold people accountable.

The problem is, with Hur, Garland should have known better, and not just because Hur was obviously a senior member of Trump’s DOJ.

At the end of last week’s Jack podcast (YouTube; Simplecast), Allison Gill and Andrew McCabe discussed the role Hur played in Trump’s DOJ. Gill replayed McCabe’s warnings, a year ago when Hur was appointed, about the former PADAG’s willingness to engage in politics. McCabe pointed to Hur’s role in imposing limits on the Mueller investigation (to which, I’ve noted, Hur didn’t adhere in this review) and participation in a gang arrest press conference staged at the White House, breaching the separation between the White House and DOJ.

But Hur had a more specific role in carrying out a partisan hit job for Trump.

Just after 1:02 on the podcast, in the stuff recorded last week, McCabe described that Hur played a key role in, “overriding the process that I was entitled to and basically accelerating the decision to fire me in an effort to get it done before I could retire.” McCabe claimed that Hur violated his due process to fulfill Trump’s demands to fire the former FBI Deputy Director rather than let him retire on schedule.

As laid out in McCabe’s 2019 lawsuit against DOJ, for months leading up to McCabe’s firing, Trump had been complaining that DOJ hadn’t fired him yet. Against that background, on March 5, 2018, FBI and DOJ started the process of using DOJ IG’s problematic report finding that McCabe lacked candor about serving as a source for one of Devlin Barrett’s biennial right wing hit jobs as an excuse to fire him. Time was short. They had less than two weeks to do that before McCabe’s designated retirement date (depending on how you calculate it, any of the days from March 16 and 19, inclusive).

The process started with Candice Will, the head of FBI’s Office of Professional Responsibility, preparing a recommendation to fire him.

After some discussion on March 5 about whether, in response to McCabe attorney Michael Bromwich’s request, McCabe’s team should get a copy of the IG Report in advance so as to have more time to respond, Will laid out, in a handwritten note sent March 7, that she would send just the letter reporting DOJ IG’s referral, but not the report, to Bromwich. Without saying it directly, Will was signaling she was not going to give Bromwich any extra time to respond.

That same note made it clear that without intervention from DAG — Rod Rosenstein’s office — “it seems unlikely that this will reach final resolution before Mr. McCabe’s March 18 retirement date.” Those rushing to fire McCabe before his retirement recognized on March 7 that the only way they could fire McCabe before he retired was via Rosenstein’s involvement.

The same morning Will explained that they couldn’t manage to fire McCabe before he retired without intervention from Rosenstein’s office, she sent Hur an email asking to speak to him on the phone, “about a matter being forwarded to the DAG?” Remember: at this point, Hur was Rosenstein’s top deputy.

Hur and Will spoke that evening.

Will’s notes from that conversation were, when released via FOIA, almost entirely redacted under a deliberative privilege. They appear to memorialize what happened at a meeting between Hur, Rosenstein, and Scott Schools that day. Schools, the senior career Associate Deputy Attorney General at the time, played a role in DOJ that was always supposed to ensure ethics; in that role, he oversaw the review process leading up to McCabe’s termination.

An email thread documenting how OLC head Steven Engel interpreted the SES guidelines on firing, which Hur then forwarded to Schools, who forwarded it to Will, likewise remains heavily redacted under b5 deliberative exemptions.

Those documents — what Robert Hur told Will on March 7, 2018 and how Steven Engel spun guidelines mapping out what kind of due process senior employees get before you can fire them — are among the records that McCabe would have gotten in discovery if DOJ hadn’t settled the lawsuit.

DOJ redacted less of the emails showing that Will kept Schools and, at times, Hur, informed of how Michael Bromwich frantically tried to review the entire case file in time to mount a legal challenge, but even there, there are deliberative discussions withheld from release.

One thing is clear: with each request Bromwich made, DOJ took days to respond.

In the lawsuit, McCabe’s lawyers noted that Bromwich wasn’t given emails and statements involving FBI’s press person, Michael Korten, that the DOJ IG had ignored — emails that were exculpatory — until the day before Bromwich had to present McCabe’s case to Schools.

Certainly, Andrew McCabe has reason to be biased against Robert Hur, because Hur was part of a team that forced McCabe to fight for years just to get a pension earned over decades.

But you don’t have to take McCabe’s word that Hur played a part in, “overriding the process that I was entitled to and basically accelerating the decision to fire me in an effort to get it done before I could retire.”

Take Merrick Garland’s word on what happened. In response to a question from Chuck Grassley shortly after the settlement, Garland explained why career lawyers at DOJ said they should settle: because they were going to lose the case.

The case … involved a claim that he was not given amount of time necessary to respond to allegations and the litigators concluded that they needed to settle the case because of the likelihood of loss on the merits of that claim.

Garland delivered this heavily rehearsed (and inaccurate — that’s not the only thing included in the suit) statement, explaining that the team that rushed to fire McCabe so they could take his pension had not given McCabe the amount of time required to respond to the allegations against him, on October 27, 2021, over a year before he named one member of that team that deprived McCabe of his due process to lead an investigation into Joe Biden.

Garland was clearly just repeating a well-rehearsed answer in this response to Grassley. It’s unlikely he reviewed the matter closely enough to know that Hur was one of the people, according to the career attorneys who said DOJ would lose the suit, who deprived Andrew McCabe of due process. Though Garland knows how DOJ works. He should have known the universe of people who might be involved.

Given how politically contentious the decision to settle was, however, it is also virtually certain that people in Lisa Monaco’s office did review the details closely. In fact, traditionally, the person who would review matters that — like this one — involve weighing ethical considerations and the potential of a big black eye for DOJ is the career Associate Deputy Attorney General, the successor to Scott Schools, who was involved in the firing.

In July 2018, Jeff Sessions appointed Bradley Weinsheimer as Schools’ successor.

It would be shocking if Weinsheimer didn’t review the decision to settle the McCabe lawsuit.

But if he did, that would be cause for further concern. That’s because Weinsheimer is the guy who rejected complaints from Biden’s attorneys about Hur’s politicized attacks on Biden.

By settling Andrew McCabe’s lawsuit, DOJ conceded that Robert Hur and others had deprived the former FBI Deputy Director of due process. They violated DOJ’s rules to do Trump’s bidding. Then, DOJ put Hur in charge of an investigation of Joe Biden.

How Robert Hur Ghosted Joe Biden’s Ghost Writer

As I’ve shown, Robert Hur only seriously considered charging two sets of documents with classified information found at Joe Biden’s home.

First, classified entries in “diaries” that Hur persistently called “notebooks” to obscure the fact that the Presidential Records Act affirmatively excludes diaries from the statute and, presumably, to provide himself license to read through them all.

(3) The term “personal records” means all documentary materials, or any reasonably segregable portion thereof, of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term includes–

(A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business;

Hur couldn’t charge those documents because DOJ didn’t charge Ronald Reagan for the classified entries in his diaries, which Hur always called diaries.

Then, two folders of documents pertaining to Afghanistan found in a ratty box in Biden’s garage. There was no direct evidence that Biden wilfully retained these documents, only to store them in a mostly-destroyed box collecting dust. Hur’s imagined motive for why Biden would — vindication that he was right about Afghanistan — is nonsensical, given that Biden had better vindication inside a desk drawer in his house, the 40-page memo Biden sent President Obama warning him it’d be a mistake to surge troops in Afghanistan.

To make the claim Biden did willfully retain them, Hur isolated a 66-word exchange Biden had with his ghostwriter in early 2017, Dan Zwonitzer, in which Biden mentioned “classified stuff.”

So this was – I, early on, in ’09-I just found all the classified stuff downstairs-I wrote the President a handwritten 40-page memorandum arguing against deploying additional troops to Iraq-I mean, to Afghanistan-on the grounds that it wouldn’t matter, that the day we left would be like the day before we arrived. And I made the same argument … I wrote that piece 11 or 12 years ago. [my emphasis]

Then he (by his own confession) read into eight words stripped from the context of the explicit reference to that 40-page memorandum that better vindicated Biden’s judgement, repeating that “8-word utterance” over and over and over. Hur even invented an attorney-client privileged conversation that Biden’s attorneys insist didn’t happen to imagine that Biden knew the box was there.

But to even get to the place where Hur was reading into eight words of a 66-word utterance, he first had to get to Biden’s ghost writer, Zwonitzer.

Nowhere in his 388-page report does Hur describe how — or just as importantly, when — that happened. Zwonitzer is not mentioned in the section that purports to provide an overview of the investigation. With the exception of a description of the five month search (though June 2023) of Biden’s Speech and Debate protected records at University of Delaware, the last date included in that overview is January 20, 2023, eight days after Merrick Garland appointed Hur. Aside from the search of those Senate documents, that section provides few details of how Hur spent over $3 million in investigative expenses or what he did during the 384 days between January 20, 2023 and when he released the report: just the numbers of interviews he did and documents he obtained, not when those things happened. Worse still, Hur deviated from the practice set by Robert Mueller and John Durham by only providing dates for witness interviews if a given witness sat for more than one interview, which obscures his investigation still further.

Hur doesn’t provide an overview of the investigation, he provides an overview of the discovery of classified documents, followed by a description of the classification review of them.

And in spite of the fact that Hur engaged in an 11-page declination discussion regarding Zwonitzer’s attempted deletion of the audio recordings of his interviews with Joe Biden (which he did in part because he was afraid of being hacked), Hur didn’t provide any dates there, except in footnotes.

FBI agents contacted Zwonitzer to request an interview and to seek records related to his work ghostwriting two of Mr. Biden’s memoirs, Promise Me, Dad and Promises to Keep. Zwonitzer provided investigators records that included near-verbatim transcripts and some audio recordings. When reviewing these materials, investigators noticed that there were some transcripts for which there was no corresponding audio recording. They then learned from Zwonitzer’s attorneys that, before the FBI contacted Zwonitzer, he deleted the recordings of his conversations with Mr. Biden. Zwonitzer then provided all electronic devices that contained or were used to create the recordings and transcripts related to Promise Me, Dad.

[snip]

Zwonitzer gave two consensual interviews during which he provided relevant information without seeking immunity or any protections or assurances (such as a proffer agreement). Zwonitzer was forthright that he had deleted recordings. 1353 In his words, “I simply took the audio files subfolder from both the G drive and my laptop and slid them into the trash. I saved all the transcripts …”1354 Zwonitzer believed he did this at some point during the period between the end of January 2023 and the end of February 2023. 1355 He took this action before the FBI contacted him about the investigation and requested that he produce evidence. 1356 Zwonitzer explained that at the time he did so, he was “aware” of the Department of ,Justice investigation of Mr. Biden’s potential mishandling of classified materials. 1357

Hur describes that Zwonitzer didn’t expect he’d get sucked into the investigation and when the FBI contacted him, they had no idea he had had recordings.

Zwonitzer also explained that at the time he deleted the recordings, he did not expect the investigation to involve him.1369 and he did not think the audio recordings contained information relevant to classified information.1370

[snip]

[W]hen FBI agents contacted Zwonitzer, they were unaware that audio recordings existed or where Zwonitzer’s electronic devices were located.

The date Hur reached out to Zwonitzer is important. Hur had no basis to even consider that Biden willfully retained those Afghanistan documents until he read through Zwonitzer’s transcripts. He describes that Zwonitzer’s “cooperation was uniquely valuable as the evidence that he provided was highly probative and not otherwise obtainable.” But he doesn’t explicitly describe when or why that happened.

Hur interviewed Zwonitzer on July 31, 2023 and again on January 4, 2024.

The biggest hint of when he decided to call up Joe Biden’s ghost writer comes in the appendix, where he reveals that he first obtained Zwonitzer’s laptop and hard drive on June 29, 2023.

The evidence Hur obtained from Zwonitzer was the last but one piece of evidence Hur describes collecting. The last? The ratty box, which by description sat in the President’s house for a year because it wasn’t deemed all that important until Hur decided to do some unconvincing photo analysis to claim the box was moved to Biden’s office from the house in Virginia in 2019.

There’s no evidence that Robert Hur reached out to Zwonitzer (who by that point couldn’t remember whether he attempted to delete the recordings in January or February) until after Jack Smith had already charged Trump for stolen documents on June 8, 2023, an indictment Hur cites repeatedly (and inaccurately) in his own report.

Perhaps just as telling, Robert Hur didn’t interview Zwonitzer until after CNN first reported about the role of Mark Meadows’ ghost writer in that investigation on May 31, 2023.

To be clear, Hur might have decided to find Zwonitzer independently. There’s a folder with materials relating to the ghost writer in that tatty box, that may explain that investigative decision. There are Vice Presidential records that mention him and even consider making him an official historian. Hur chased a theory that he could match the marked classified records found in Biden’s home with passages in Biden’s two books, a theory that totally failed with regards to the book Zwonitzer and Biden worked on in 2017.

But on the record Hur chooses to provide in his 388-page report, it’s not clear whether he reached out to Biden’s ghost writer because obvious investigative leads led there or because Jack Smith indicted Donald Trump so Hur decided to redouble his efforts to try to find a similar crime he could pin on Biden.

Rod Rosenstein’s Baltimore Club of Men Gunning for the Bidens

In an interview yesterday with Jake Tapper (transcript), Rod Rosenstein exhibited more familiarity with the Robert Hur report, which had been public for just three days, than he was about the Mueller investigation that he oversaw for two years, during ten months of which, Hur played a key role.

Tapper: He was your deputy at the Justice Department. Do you agree with his decision that Biden should not be charged, it was not a prosecutable case?

Rosenstein: Yes, Jake.

And it’s — most people haven’t read the entire report. And I don’t blame them. It’s 345 pages, about 1,400 footnotes. It’s very dense and well-reasoned. And I think, if you read the whole report, you will conclude that Rob reached a reasonable decision that, given all the circumstances, that prosecution is not warranted.

After all, Rod Rosenstein was personally involved in drafting (though did not sign) the Barr Memo making a prosecution declination for Trump for his obstruction-related actions. Yet not even Rosenstein, who had been involved in the investigation from the start, thought to address the pardon dangles — a key focus of Volume II of the Mueller Report — that continued to undermine ongoing investigations.

Then, over a year later and under pressure from Lindsey Graham for having signed the worst of the Carter Page FISA applications, Rosenstein agreed with Graham’s false portrayal of the investigation as it existed on August 1, 2017, when Rosenstein expanded the scope of the investigation.

Lindsey Graham: (35:02) I am saying in January the 4th, 2017, the FBI had discounted Flynn, there was no evidence that Carter Page worked with the Russians, the dossier was a bunch of garbage and Papadopoulos is all over the place, not knowing he’s being recorded, denying working with the Russians, nobody’s ever been prosecuted for working with the Russians. The point is the whole concept that the campaign was colluding with the Russians, there was no there there in August, 2017. Do you agree with that general statement or not?

Rod Rosenstein: (35:39) I agree with that general statement.

Rosenstein’s endorsement of Lindsey’s statement about the evidence as it existed in August 2017 was egregiously wrong. Mueller had just acquired a great deal of evidence of conspiracy, including several details implicating Roger Stone and Paul Manafort that were never conclusively resolved. Crazier still, George Papadopoulos had just been arrested for lying to cover up when he learned that Russia planned to help Trump, an arrest of which Rosenstein would have personally had advance notice.

By comparison, days after its release, Rosenstein exhibited great confidence in his knowledge of the 1,400 footnotes his former deputy included in the report.

To be sure, Rosenstein’s defense of Hur did not honestly present the content of the Report. For example, the only other reason  he provides for why Hur didn’t charge Biden, besides Hur’s opinion that Biden is a forgetful old geezer, involved the tradition of Presidents taking things home.

ROSENSTEIN: I think so, Jake.

And you identified the controversial elements of the special counsel’s report. It’s a very long report, 345 pages, and has a lot of information in there, other reasons why prosecution would not be warranted. And one of them is the history and experience of prior presidents and potentially vice presidents as well taking home classified documents.

This is simply a misrepresentation of the evidence.

Even if you ignore Hur’s misstatement of DOJ’s application of 18 USC 793(e) in cases where there is no other exposure (in something like a leak) or the challenges in applying it to someone who, like both Biden and Trump, didn’t hold clearance, for the primary set of documents he examined — the two folders of Afghanistan documents found in Biden’s garage — Hur admitted he couldn’t prove his already inventive theory of the case. He couldn’t even prove that the documents in question had been in Biden’s Virginia home when Biden made a comment about something classified in his home.

Rosenstein is, as Hur already did, emphasizing the most unflattering part of the declination decision, not the fact that after blowing  over $3M and reading through Joe Biden’s most personal thoughts, Hur simply didn’t find evidence to support a charge.

Twice, Rosenstein disputed that Hur’s focus on Biden’s age was the kind of gratuitous attack for which he had made the case for firing Jim Comey, the second time in direct response to a question about the memo he wrote.

Tapper: I want to read from a memo you wrote in 2017 in which you criticized James Comey’s infamous press conference in which he criticized Hillary Clinton’s handling of classified e-mails, even as he declined to prosecute her, a similar circumstance, although he wasn’t a special counsel — quote — “Derogatory information” — this is you writing — “Derogatory information sometimes is disclosed in the course of criminal investigations and prosecutions, but we never release it gratuitously.

“The FBI director laid out his version of the facts for the news media as if it were a closing argument, but without a trial, it is a textbook example of what federal prosecutors and agents are taught not to do” — unquote. By going to the lengths he did to critique Biden’s age and memory, even as he was clearing him of a crime, how do you differentiate between what Robert Hur did that you say is OK from what James Comey did that you say is not?

ROSENSTEIN: Jake, there are several significant differences between those two examples.

One is, most fundamentally, that Jim Comey wasn’t the prosecutor. He was the head of the FBI. His job was to ensure the police collected the proper evidence, submitted it to the prosecutors. And, ultimately, it’s up to the prosecutors in the Justice Department and the attorney general to make a decision about what information is released.

Rob Hur was the prosecutor. It was his job to make that decision, to make that recommendation to the attorney general, who, as you acknowledged, has previously committed to make this report public. That’s one difference.

The second difference is the special counsel regulation. In the ordinary case, Hillary Clinton was not investigated by a special counsel. There was no procedure to make those reasons public. Here, it’s baked into this regulation.

Now we sit, Jake, 25 years down the road. That regulation was passed by Attorney General Reno in 1999. Now we have 25 years of experience. I think it’s worthwhile to sit back and ask whether or not this is the right procedure. Do we really think that we ought to have prosecutors writing reports for public release of everything they discover and all the reasons for not prosecuting?

Or is there a better way to do that without having all the embarrassing information come to public light?

The big tell in Rosenstein’s defense of his former deputy, though, is his suggestion there’s a comparison between Hur’s attacks on Biden’s age with what Mueller — under the direction of Rosenstein and Hur — included in his report, which spent far fewer pages laying out the prosecutorial analysis for far more potential criminal exposure by Trump.

The second issue is what you release in the public. And the problem here with — that’s really baked in the special counsel model is that it’s not really the function of a prosecutor to publicly announce the reasons why they’re not prosecuting.

And so when you layer that into the process, it can result in unfortunate consequences. The Donald Trump report, I think, got people upset in the same way that this one did.

Given his inclusion of Independent Prosecutor Lawrence Walsh here, Rosenstein’s comparison is insane, because he left out the Ken Starr Report (to which investigation, he reminded Tapper, he contributed), which included the most gratuitous descriptions of the subject of the investigation of any of these reports.

Rosenstein’s likening of the Mueller and Hur report is odd for a number of reasons. The part of the Mueller Report focused on Trump was 200 pages, far shorter than the Hur Report yet covering far more overt acts.

Mueller made absolutely no complaint that both Trump and his failson refused to appear before a grand jury whereas Hur’s attacks arose out of Biden’s willingness to sit for several days of a voluntary interview. Mueller let Trump’s decision to invoke the Fifth stand without ascribing criminal motive; Hur made Biden’s cooperation into cause for attack.

But even in smaller details, the reports don’t compare. One thing Hur made up, for example, is that Biden might have alerted his attorneys that there were classified records (in a ratty beat up old box) in his garage, but his team couldn’t find out because if they asked, the answer would be privileged.

We considered the possibility that Mr. Biden alerted his counsel that classified documents were in the garage, but our investigation revealed no evidence of such a discussion because, it if happened, it would be protected by the attorney-client privilege.

This claim only appears in the Executive Summary, where lazy journalists might find it. It appears nowhere in the body of the report (which has to deal with the fact that if Biden had really brought these documents home, he wouldn’t have so willingly let his attorneys search for them). It’s one of the things Biden’s attorneys asked to be corrected.

There are a number of inaccuracies and misleading statements that could be corrected with minor changes:

  • ‘We considered the possibility that Mr. Biden alerted his counsel that classified documents were in the garage but our investigation revealed no evidence of such a discussion because if it happened, it would be protected by the attorney-client privilege.” Report at 22. In fact, your investigation revealed no evidence of such a discussion because it did not happen–not because of any privilege. The President testified he was unaware that there were any classified documents in his possession. Tr., Day II, at 2, 41-42. You did not ask him in his interview or in the additional written questions if he had “alerted his counsel” about classified documents; if you had, he would have forcefully told you that he did not.

Hur’s decision to fabricate the possibility of an attorney-client conversation that did not happen — and his obstinate refusal to correct it — is especially telling given Mueller’s hands-off treatment of attorney-client privilege.

For example, Mueller didn’t even try to ask Jay Sekulow about his role in drafting Michael Cohen’s false claims about the Moscow Trump Tower, even though Cohen said Sekulow was involved.

The President’s personal counsel declined to provide us with his account of his conversations with Cohen, and there is no evidence available to us that indicates that the President was aware of the information Cohen provided to the President’s personal counsel. The President’s conversations with his personal counsel were presumptively protected by attorney-client privilege, and we did not seek to obtain the contents of any such communications.

Nor did Mueller attempt to interview John Dowd about whether he left a threatening voicemail for Mike Flynn’s then-attorney Rob Kelner, to find out whether Trump directed Dowd to make the threat.

Because of attorney-client privilege issues, we did not seek to interview the President’s personal counsel about the extent to which he discussed his statements to Flynn’s attorneys with the President.

In both cases, Mueller let privilege close off investigation into more egregious evidence of obstruction.

So where Mueller let Trump hide behind attorney-client privilege as a shield, Hur flipped that, and used a fabricated attorney-client conversation as a shield to insinuate evidence of guilt where none existed.

In short, Rosenstein went on teevee and made a bunch of cynical claims, defending Hur’s attack on Biden even while claiming that the Mueller Report was just as damning.

As I and others contemplate how Merrick Garland made such a shitty choice for Special Counsel here, I keep thinking about the fact that there’s a little club of Rod Rosentein associates gunning for the Biden men. There’s Hur, and Rosenstein’s hypocritical and remarkably hasty defense of him.

There’s also the reference that Gary Shapley, who is based partly in Baltimore, made about a prosecutor who became Deputy Attorney General, a reference that can only describe Rosenstein.

Mr. Shapley. No. I think I’ve said it, that this is not the norm. This is — I’ve worked with some great guys, some great prosecutors that went on to be U.S. attorneys and went on to be the deputy attorney general and, I think I have experience enough to where it means something.

After having agreed with the IRS that the case against Hunter Biden couldn’t move forward if Shapley were on the team, David Weiss then decided to appoint two AUSAs who would have worked for Hur and Rosenstein as AUSAs in MD USAO, in the case of Leo Wise, for years.

That is, the cabal of men gunning for Joe Biden and his son — all of whom have already engaged in questionable games — have ties to Rod Rosenstein, who still seems to be trying to make it up to Trump for his role in appointing a Special Counsel.

And Rod Rosenstein, as he demonstrated in that interview, is giving Hur, at least, special license to engage in precisely the kind of conduct for which he endorsed firing Jim Comey.

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.

Robert Hur’s Box-Checking

In the middle of his explanation for why he believed that Joe Biden had willfully retained classified records pertaining to Afghanistan but that he couldn’t prove that beyond a reasonable doubt, Special Counsel Robert Hur admitted that jurors “who are unwilling to read too much into” what Hur describes as an 8-word utterance would find his case lacking.

But reasonable jurors who are unwilling to read too much into Mr. Biden’s brief aside to Zwonitzer–“I just found all the classified stuff downstairs”–may find a shortage of evidence to establish that Mr. Biden looked through the “Facts First” folder, which is the only folder known to contain national defense information. These jurors would acquit Mr. Biden of willfully retaining national defense information from the “Facts First” folder.

I’m puzzled how this is not a confession that he, Hur, was really reading too much into two file folders the FBI found in a box in Biden’s garage.

Indeed, that’s what two bizarre chapters in his story are, Hur the novelist, spinning a story about this box because, he admitted much earlier, this is the best he’s got.

As explained in Chapter Eleven, the strongest case for criminal charges against Mr. Biden relating to the Afghanistan documents would rest on his retention of the documents at the Virginia home in 2017.

The only other retained documents he even considered charging were Biden’s diaries, which Biden seems to have kept under the Presidential Records Act’s exclusion of diaries from the definition of Presidential Records (though Hur included a picture of Biden taking notes in one of these notebooks during a key meeting in the Situation Room, so that notebook, at least, was a Presidential Record).

(3) The term “personal records” means all documentary materials, or any reasonably segregable portion thereof, of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term includes–

(A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business;

To sustain his claim that those notebooks represented willful retention that he couldn’t prove, Hur got in a squabble about the precedent set by Ronald Reagan’s diaries, which similarly included classified information, but which weren’t charged even after they became key evidence in the Iran-Contra investigation. Biden had a precedent to rely on, and so Hur didn’t charge.

So left with only the box in the garage to appease the Republicans, Hur worked backward from this reference in a conversation Biden had with his ghost writer in 2017, the 66-word utterance on which he built a 388-page report:

So this was – I, early on, in ’09-I just found all the classified stuff downstairs-I wrote the President a handwritten 40-page memorandum arguing against deploying additional troops to Iraq-I mean, to Afghanistan-on the grounds that it wouldn’t matter, that the day we left would be like the day before we arrived. And I made the same argument … I wrote that piece 11 or 12 years ago. [my emphasis]

Only Hur didn’t call it a 66-word utterance. He called it an 8-word utterance, repeating those bolded eight words 23 times in the report without mention of the 40-page memorandum that Biden mentioned in the same sentence. Only once did he provide the full context.

Biden’s attorneys argued that given that Biden mentioned it in the very same sentence, it’s more likely that Biden was referring to that memo than two folders of documents found in a box in Biden’s garage.

We believe that an accurate recitation of the evidence on this point would recognize the strong likelihood that the President was referring in the recording to his private handwritten letter to President Obama — the one mentioned on this recording immediately after the eight words that you are focused on — rather than the marked classified Afghanistan documents discovered in the Wilmington garage.

There were drafts of the memo — which Biden wrote over Thanksgiving in 2009 in an attempt to dissuade President Obama from surging more troops into Afghanistan — in the box in the garage, but the FBI found the hand-written memo itself stored elsewhere in Biden’s Wilmington home. It too had classified information in it, but Hur treated it like the diaries it was found in, something Biden wrongly treated as a personal document.

Because these documents on Afghanistan were the only thing he had, Hur went to some length to spin a story that might be consistent with Biden finding those documents in a rental house in Virginia in early 2017 and, just weeks after having sent other marked classified documents back to the Naval Observatory, deciding to keep them.

Part of that involved telling two stories, which narratively collapse events from 2017 with the discovery of the documents in question, to provide motive.

Hur’s first attempt suggested that Biden willfully retained these documents to help write his book, Promise Me, Dad, on which he was working with the ghost writer to whom he mentioned classified documents.

MR. BIDEN’S SECOND BOOK, PROMISE ME, DAD, AND THE DISCOVERY OF CLASSIFIED AFGHANISTAN DOCUMENTS

Like many presidents, Mr. Biden has long viewed himself as a historic figure. Elected to the Senate at age twenty-nine, he considered running for president as early as 1980 and did so in 1988, 2008, and 2020. During his thirty-six years in the Senate, Mr. Biden believed he had built a record in both domestic and foreign affairs that made him worthy of the presidency.

In addition to the notebooks and notecards on which he took notes throughout his vice presidency, Mr. Biden collected papers and artifacts related to noteworthy issues and events in his public life. He used these materials to write memoirs published in 2007 and 2017, to document his legacy, and to cite as evidence that he was a man of presidential timber.

Only, that story didn’t work, because Promise Me, Dad wasn’t about Afghanistan, it was about Beau’s death and Biden’s subsequent decision not to run for President in 2016. And while Hur tried to fudge what surely was the result of a classification review, that book had no classified information in it.

As Biden’s attorneys noted, not only wasn’t Promise Me, Dad about Afghanistan, but Biden never wrote a book — never intended to write a book — about this Afghanistan policy dispute.

Your report erroneously (and repeatedly) makes statements about the value of the marked classified Afghanistan documents to President Biden, such as President Biden had a “strong motive” to keep them and they were an “irreplaceable contemporaneous record” like the notebooks. Report at 203. 231. These statements are contrary to the evidence and the documents themselves. First the President forcefully testified that he “never thought about writing a book about the 2009 Afghanistan policy review. Tr., Day II at 22. Thus, the President had no need to retain the documents for that purpose.

So Hur tried again in the following chapter. This time his story — one relying primarily on books other people wrote — Obama, Stan McChrystal, and Robert Gates, with only Ron Klain backing it with witness testimony — was that Biden needed the documents for vindication, when Afghanistan turned into America’s Vietnam. Secret vindication, I guess, given that Biden didn’t use this in the 2020 election.

To fully appreciate Mr. Biden’s references to Afghanistan in his conversation with Zwonitzer on February 16. 2017, it is helpful to understand Mr. Biden’s place in the fraught debate about American policy in Afghanistan in the early days of the Obama administration.

In that debate. Mr. Biden played a conspicuous role. He strongly opposed the military’s effort to send large numbers of U.S. troops to Afghanistan, and this opposition culminated in the lengthy handwritten memo Mr. Biden sent President Obama over the Thanksgiving holiday in 2009. By 2017, Mr. Biden believed his judgment as reflected in the memo had been vindicated by history. Years later, in December 2022 and January 2023. FBI agents found the handwritten Thanksgiving memo and marked classified documents containing his advice to President Obama in Mr. Biden’s Delaware home.

This is a closing argument. This language is wildly inappropriate in a declination memo, because Hur didn’t find the evidence to back this story!

Worse still, it’s stupid. Because all Biden needed for vindication was that 40-page memo, the one he mentioned in the very same sentence as he mentioned the classified documents. The one stored inside the house, not in a discarded box in the garage. The one he never used during the 2020 election.

But Hur was undeterred by a stupid motive argument.

Next, after admitting that the FBI never succeeded in tracing the Afghan documents, much less proving they were in the basement of the Virginia house, he used this photo analysis to claim that the box found in the garage is the same one that appeared in two pictures taken in Biden’s Wilmington office in 2019, shortly after everything was shipped from Virginia to Delaware.

Maybe that’s right? Or maybe (as some people argued in this thread on Xitter) the D on the box in the garage is shaped differently and in a different place on the box lid than the one in the picture. Whatever it is, it’s no smoking gun.

Finally, Hur goes to the contents of the box, claiming — with some justification — that some of the things in the box date to the same period when Biden uttered those 8 or maybe 66 words to his ghost writer.

Several folders in the garage box contained materials that Mr. Eiden appears to have accessed both shortly before and shortly after February 16 2017, the day Mr. Biden told Zwonitzer he had “just found classified documents downstairs. 582 For example, in January 2017 less than a month before told Zwonitzer he had just found the classified documents downstairs, Mr. Biden appears to have accessed documents later found in the box. On January 23, 2017. Biden wrote a notebook entry about a call scheduled for later that to finalize a deal with Creative Artists Agency (CAA), a talent agency that went on to represent him in negotiating his book deal for Promise Me, Dad. 583 The same entry also referenced Mr. Biden’s work with his sister on his “S Corp.”584

The box found in Mr. Biden’s garage contained a corresponding file folder, labeled “Signed Contracts Penn, CAA,” which contained the signature page of a final agreement between Mr. Biden and Creative Artists Agency.585 Mr. Biden signed the agreement, which was dated a few days after the notebook entry, on January 26, 2017.586 The folder also contained the final agreement between Mr. Biden and the Penn Biden Center-Mr. Biden’s primary employer after his vice presidency-which Mr. Biden signed, also on January 26, 2017. 587 And the folder contained a W-9 tax form for Mr. Biden’s S corporation, CelticCapri, which Mr. Biden used to receive income from book deals and speeches, among other purposes.588 The W-9 form listed Mr. Biden as the president of the S corporation and was signed by Mr. Biden and dated January 30, 2017-less than three weeks before Mr. Biden told Zwonitzer he had just found classified documents downstairs.589

The argument would be more persuasive, admittedly, if Hur didn’t confess that the FBI got the documents that had been in the box out of order when they repackaged them.

When FBI agents repackaged the contents of the ripped garage box into a new box on December 21, 2022, it appears the order of a few of the materials changed slightly. This chapter discusses in detail below two folders that contained marked classified documents about Afghanistan: the manila “Afganastan” folder and the red “Facts First” folder. It appears the “Afganastan” folder was near the “Facts First” folder in the garage box when agents recovered the box, but the precise original location of the “Afganastan” folder at that time is unknown.

Dudes. This was a consensual search of the President’s home, and you couldn’t even repackage documents competently? Really?

This argument would be more persuasive still if Hur weren’t ignoring some of the other things that were found in the box, that had nothing to do with Biden’s transition in 2017, which Biden’s attorneys described this way:

Your characterization of the box in the garage as containing only matters of “great personal significance” to the President is inconsistent with the facts. The evidence shows that this tattered box contained a random assortment of documents. including plainly unimportant ones such as: a short-term vacation lease; a VP-era memorandum on furniture at the Naval Observatory for purchase; talking points from speeches; campaign material; empty folders; a 1995 document commemorating Syracuse Law’s 100-year anniversary; and other random materials. In his interview. President Biden commented regarding one of the folders, which read “Pete Rouse”: “Christ that goes back a way,” confirming that he had not encountered that material in recent years. Tr., Day I, at 144. When asked how things like a binder labeled “Beau Iowa” got into the “beat-up” box. the President responded “Somebody must’ve, packing this up, just picked up all the stuff and put it in a box, because I didn’t.” Id. at 146. When asked about the later-dated material, the President responded: “[s]ee, that’s what makes me think just people gathered up whatever they found, and whenever the last thing was being moved. So the stuff moving out of the Vice President’s residence, at the end of the day, whatever they found. they put – they didn’t separate it out, you know, Speakers Bureau and Penn or whatever the hell it is. or Beau. They just put it in a single box. That’s the only thing I can think of.” Id. at 147. Some of the documents in the box contain what appears to be staff handwriting–including a D.C. tax return and a W2-further indicating that the box was likely filled by staff. We believe that an accurate recitation of the evidence on this point would include a description of these facts.

The true jumble of the box is particularly important because, elsewhere, Hur used the similar miscellany in a different box to rule out the possibility of willful retention for some of the documents found at the Penn Biden Center.

Finally, several of the files in the box where the EYES ONLY envelope was found appear to have been forgotten files of little value to Mr. Biden, such as the file about a 2011 ski trip. The files, therefore, do not appear to be a set that Mr. Biden personally curated. Nor do they appear to be the type of files people keep close as a matter of course in their everyday lives.

Hur adopted a different standard where it was clear only staffers were involved in packing a box than he did with a box that was central to “the strongest case for criminal charges against Mr. Biden.” Hur needed this box to be personally curated by Joe Biden, and so he omitted a bunch of random stuff that would debunk his story.

Still, this entire investigation should never have gotten this far, to where Hur was doing desperate last interviews three months after Biden’s own interview, to where Hur was spending 156 pages describing his declination decisions, and so in the process describing every single document at length.

To get there, Hur did something almost unheard of in declination decisions for 18 USC 793(e) cases: He treated “failure to deliver” as affirmative. Bizarrely, when he gets to the part of his discussion of the statute where he describes having to prove that Biden refused to deliver National Defense Information documents to an appropriate government official, he pivots, changes the subject, mid-paragraph.

Finally, the government must prove that a defendant willfully retained the material and failed to deliver it to an officer or employee “entitled to receive” the information. The statute does not define who is “entitled to receive” the information, so again, courts have looked to the governing rules concerning the handling of classified materials, primarily the executive order. 758 Generally, those entitled to receive the information are people with the requisite security clearance and the need to know. 759 Willfulness is a heightened mens rea, which as articulated by the Supreme Court in Bryan v. United States, requires proof “that the defendant acted with knowledge that his conduct was unlawful.” 760 Under the Espionage Act, an act is willful when “it is done voluntarily and intentionally and with the specific intent to do something that the law forbids. That is to say, with a bad purpose either to disobey or to disregard the law.” 761 While willfulness requires proving an intent to disobey the law, courts have applied Bryan’s standard of “simple willfulness” to Section 793(e) and rejected any need for the government to prove an intent to cause harm. 762

Accordingly, to prove a violation of Section 793(e) we would need to show that Mr. Biden knowingly retained national defense information and failed to deliver it to an appropriate government official, and that he knew this conduct was unlawful. [bizarre pivot] As discussed in more detail below, because of the interrelation between “national defense information” and “classified information,” when evaluating a potential Section 793(e) charge, the Department considers whether the information the person possessed was classified and whether the person knew it was classified.

In doing so, he dodges (here) the difficulty with charging a President with 793(e): That unlike actual clearance holders, Biden was never processed out of a clearance, which is where prosecutors fulfill that prong of the elements of offense when charging 793(e) along with other crimes, like leaking. When people with clearance leave their job, they’re reminded they have to give stuff back; because he wasn’t processed out of a clearance, Biden never got that talk.

Hur then wanders off a little ways, then returns to the question of delivering classified documents to someone entitled to receive them, by purporting to distinguish 793(e) from 793(d).

Subsection (d) also does not apply, because it requires a failure to deliver materials on demand, and when asked to return any classified materials from his vice presidency, Mr. Biden consented to searches and returned all potentially classified materials that were discovered. 767

Nuh uh! That’s not the difference between (d) and (e). The main difference is whether someone is authorized to have classified information or not.

(d) lawfully having possession … or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it;

(e) unauthorized possession … or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it

Even for dirtbags like Jeremy Brown, DOJ generally only charges a retention charge absent something else after an officer asks for documents back. In Brown’s case, for example, they called an officer who had asked for the specific charged documents back to testify at trial to prove that prong of the elements of offense. And because Joe Biden was never processed out of a clearance, because the Archives never came looking for these, no one ever asked him to give the documents back.

Until he offered the documents up.

This entire report, all 388 pages of it, is based on a wild misrepresentation of how DOJ approaches Espionage Act prosecutions. And to the extent it’s not — to the extent that Hur is clinging to events caught on tape back in 2017 — the Statutes of Limitation have long expired.

And that gives up the game, even more than Robert Hur’s confession that jurors who weren’t, as he spent a year doing, “read[ing] too much into” some documents found in a box, would never convict on this.

Hur spent a year trying to find facts that would allow him to charge Joe Biden, charge a President, doing backflips with the evidence along the way, and then writing up a report that provides far more evidence about 40 year old documents covered by Speech and Debate than we’ll ever learn about the stolen documents at Mar-a-Lago.

This was never an ethical prosecutorial pursuit. It was always about writing a novel for a rabid audience.

Or, as you might consider it, just an exercise in box-ticking for partisan ends.

Update: I’ve been corrected: The SOL on Espionage Act is 10 years.

Hur Report Open Thread: 388 Pages about a Single 8-Word Utterance

Robert Hur has released his report, declining charges against Biden but finding he did willfully retain information. He wrote a 388-page report about — by his own description — “a single 8-word utterance.”

I’ll do a running thread here.