With the discovery of yet more classified documents at President Biden’s Wilmington home on Friday, the disclosure of which was withheld from the public until after the NFL playoff coverage began on Saturday evening, the Biden team is trying to put its best spin on things: The president, you’re to believe, is being fully cooperative.
The truth of the matter is that, like most criminal suspects as to whom there is already strong evidence of felony offenses, Biden consented to a search knowing that, if he did not, newly appointed special counsel Robert Hur would apply for a judicial warrant from a federal judge. Biden would then have been subject to the same political damage that has dogged former president Donald Trump since the Mar-a-Lago search in August: a judicial finding of probable cause to believe he has committed multiple offenses for which the penal code prescribes prison terms of up to ten years (for each offense).
This would promptly have been followed by a compulsory search in which the FBI ended up seizing even more incriminating evidence, thus making the case for criminal prosecution even stronger. That, in turn, would put have more pressure on the Justice Department to recommend an indictment (assuming, as I do, that the special counsel must follow longstanding DOJ Office of Legal Counsel guidance that forbids the indictment of a sitting president – i.e., the indictment must await the incumbent’s exit from office, consistent with the Constitution, see art. I, §3, cl.7).
To try to stave off this chain of political disasters, Biden has decided to pose as a dedicated public servant who cooperates unfailingly with law enforcement because he has nothing to hide. Don’t fall for it. Team Biden has been playing games for two months. And clearly the president not only has things to hide; he has been hiding some of them for over 15 years—a portion of the classified documents seized Friday trace to Biden’s time in the Senate (1973–2009), even though senators are only permitted to review classified documents in secure facilities at the Capitol or at intelligence agencies, not take them home.
A guy who has nothing to hide does not retain high-priced lawyers to pack up his private office, as Biden did with his Washington think-tank digs, where the first batch of highly classified documents was found on November 2. Having lawyers pack up is the kind of thing you do when you’re a Democratic president who raked in millions of dollars from operatives of foreign governments, and when Republicans are about to take control of the House – and use its subpoena power to investigate.
The president did not consent to an FBI search of his home because he is unconcerned. He consented to it because he knew law enforcement had more than sufficient evidence to compel a search of his home. From his standpoint, with his 2024 reelection hopes now teetering, it was better to pose as a cooperative volunteer than be forced to open his door to federal agents brandishing a judicial warrant.
On this point, the scandal is: Why did the Justice Department wait so long? And why, in the interim, did both DOJ and the Biden White House allow Biden private lawyers who did not have security clearances conduct what turn out to have been incompetent searches that both (a) exposed them to secret intelligence they were not authorized to possess, and (b) failed to locate the secret intelligence they said they were looking for? (And recall that Biden spokeswoman Karine Jean-Pierre assured us ten days ago that Biden’s lawyers had completed the search for classified documents—only to have still more documents be discovered hours later.)
Remember the timeline here. The first batch of classified documents was found illegally stored in Biden’s office on November 2—i.e., over two-and-a-half months before the FBI finally conducted Friday’s search. Contrary to Biden’s claim of self-reporting, he did not report that discovery—evidence of a serious crime—to law enforcement. Rather, his private lawyers reported it to the Biden White House, which then notified not the Justice Department but the National Archives and Records Administration (NARA). It appears Biden was hoping NARA would just return the documents to the files and no one would be any the wiser.
The discovery, however, came to the attention of NARA’s inspector general—the watchdog official who reports agency wrongdoing to Congress. It was the IG’s office that, on November 4, notified the Biden Justice Department.
At that point, DOJ had to know that Biden had illegally maintained the documents in at least two unauthorized locations: He removed them at the end of the Obama administration in January 2017, but the Biden Penn Center did not open until February 2018, so the documents had to be kept someplace else in the meantime.
Yet, the Justice Department took no immediate action. Biden apologists say this passivity was consistent with DOJ’s practice of avoiding actions that could unduly influence elections (the midterms were November 8). But that DOJ practice is not a legal rule. And it would not in any event have prevented DOJ from quietly seeking a search warrant or having the FBI discretely conduct a consensual search. Importantly, moreover, DOJ’s practice is not a restriction on the White House: Nothing prevented Biden from telling the public what had happened.
After the midterms, Biden’s lawyers and DOJ exhibited mind-boggling recklessness in their next steps. The Justice Department reportedly declined to have the FBI conduct searches of Biden’s private locations, knowing these searches would be undertaken by Biden private lawyers, who lacked security clearances. On December 20, the Biden aides discovered more classified intelligence in the garage of the president’s Wilmington residence. This time, they had no choice but to notify prosecutors, since an investigation had been opened. Yet the Justice Department merely sent agents to retrieve the documents, not to conduct any search.
That was a month ago. Even though evidence of criminal misconduct was mounting and Biden’s DOJ had a blatant conflict of interest in investigating the president, Attorney General Garland dragged his feet about appointing a special counsel. That didn’t happen until CBS burst the dam with its January 9 report that documents had been found in Biden’s office on November 2. Even then, the Biden administration tried to keep a lid on the discovery of the garage documents. Yet the press soon reported that, too, as well as the discovery on January 12 of still more classified intelligence at Biden’s Wilmington home (in his private library).
Since early November, then, the Justice Department has had probable cause to search Biden’s private residences, as well other private locations he used for storage after the end of the Obama administration. As I said last week, Garland can be forgiven for not immediately seeking search warrants, which would have been a drastic step. But that doesn’t mean DOJ lacked legal grounds for a search warrant. Even when a prosecutor has abundant evidence to support the issuance of a judicial warrant, there is always the option of asking the subject to consent to the search, which spares DOJ the burden of applying for a warrant, and the subject the stigma of the court’s probable-cause finding. Ergo, many weeks ago, the Justice Department should have told the president’s lawyers that either Biden could consent to have the FBI search or DOJ would seek and obtain judicial warrants to compel such searches.
There is no excuse for the Justice Department’s failure to act until now, in light of both the national-security risk that classified information would fall into the wrong hands and its awareness that Biden aides without security clearances would search for documents they were not authorized to possess—especially after those aides predictably found such documents on December 20 and January 12. There is no excuse for Biden’s causing aides who lacked security clearances to search for (and find) classified documents that he had unlawfully retained. And why hasn’t the Justice Department had the FBI search other Biden locations?
Biden did not consent to Friday’s FBI search because, as he claims, he has been cooperative from the start. He consented to a long-overdue search because he knew that, if he didn’t, the newly appointed special counsel would get a search warrant.
https://www.nationalreview.com/corner/why-biden-consented-to-an-fbi-search/
https://www.nationalreview.com/2023/01/biden-classified-document-scandal-heralds-return-of-fbis-comey-hillary-rules/
https://www.nationalreview.com/corner/senator-biden-killed-carters-cia-nominee-over-mishandling-classified-documents/
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