“President Biden still isn’t what you’d call popular, but he’s closer to popular than he’s been in some time. On Jan. 11, Biden hit a 44.1 percent approval rating in FiveThirtyEight’s average — his highest mark since October 2021. That was 3 percentage points higher than it was on Nov. 9, which isn’t a huge increase in the grand scheme of things, but in this polarized age where any movement in the president’s approval rating is rare, it’s a veritable Bidenaissance.
This is the part of the story where you expect me to explain why this is happening. Which is understandable, except it’s impossible to know for sure what’s behind this shift. One leading theory, though: It’s because inflation has been slowing down. Prices in December 2022 were just 6.5 percent higher than they were in December 2021, which was the lowest inflation rate in over a year. Gas prices, another highly visible metric of the strain on Americans’ wallets, also plummeted from an average of $3.80 per gallon in November to $3.32 per gallon in December. These seem like pretty compelling explanations, considering how closely Biden’s approval rating was tied to the inflation rate and gas prices last year.”
“But is Biden’s luck about to run out? The discovery of a handful of classified documents from the Penn Biden Center and Biden’s Delaware home has generated arguably the first bad news story for Biden in months, and it’s fair to wonder whether it will reverse — or at least halt — his miniature political comeback. The few polls that have been conducted since these revelations suggest that Americans think Biden acted badly, and that could be dragging down his approval rating.”
“In addition to the “small number” of classified documents in President Joe Biden’s former think tank office, it turns out, he had a “small number” in the garage of his house in Wilmington, Delaware, plus one more in a room adjacent to the garage.* These were Obama administration records that Biden came across during his time as vice president, and they were definitely not supposed to be in those locations. What had initially seemed like a single lapse now looks like a pattern of carelessness, which creates several problems for Biden and the Justice Department.
First, Biden is no longer in a position to criticize Donald Trump’s “totally irresponsible” handling of sensitive material that he retained when he left office. Second, the delay in acknowledging Biden’s retention of classified records and obfuscation of its scope look like blatant attempts to minimize the political fallout. Third, a criminal prosecution of Trump for his handling of the government documents he took to Mar-a-Lago, which was always an iffy proposition, now seems doomed for political as well as legal reasons.
That is not to say there are no meaningful differences between what Trump did and what Biden did. Based on what we know so far, Trump’s stash, which included 325 classified documents along with thousands of unclassified government records, was much larger than Biden’s. And unlike Biden, Trump persistently resisted returning the documents, apparently because he considered them his personal property. That resistance included months of wrangling with the National Archives and Records Administration and incomplete compliance with a federal subpoena, which culminated in the FBI’s August 8 search of Mar-a-Lago.
Then again, Biden kept classified records in unapproved locations for six years, while Trump managed to do that for about a year and a half. Biden said he was “surprised” to learn last fall about the documents in his former office. Biden “takes classified information and materials seriously,” said Richard Sauber, the “special counsel to the president” who is overseeing the White House’s response to the case of the misplaced secrets. “We are confident that a thorough review will show that these documents were inadvertently misplaced, and the president and his lawyers acted promptly upon discovery of this mistake.””
“there is considerably more evidence to support an inference of criminal intent in Trump’s case. That applies to all three potential charges that the FBI mentioned in its Mar-a-Lago search warrant affidavit: removing or concealing government documents, retaining “national defense information,” and obstructing a federal investigation.
But all three charges include mens rea elements that will be hard to satisfy even in Trump’s case. Based on what we know so far, it is plausible that Trump’s conduct can be explained by a combination of ignorance, arrogance, stubbornness, laziness, and carelessness rather than criminal intent.
Even if Smith turns up more evidence that Trump “willfully” mishandled documents or deliberately obstructed the FBI’s investigation, prosecuting him while giving Biden a pass is bound to be perceived as unfair, inconsistent, and politically motivated. Trump’s supporters surely would see it that way, and so would many Americans who have no particular allegiance to him and might even be inclined to vote for Biden in 2024.
To avoid the firestorm that such a decision would ignite, Garland could let Smith and Hur lay out their findings, make a show of carefully weighing them, and then decide there is not enough evidence in either case to prove criminal charges beyond a reasonable doubt. That might even turn out to be true.”
“White House lawyers initially found sensitive documents at the Penn Biden Center in Washington — where Biden kept a personal office — on Nov. 2, a day before the midterm elections, and notified the Justice Department. On Dec. 20, Biden’s team notified the department of a second batch of documents in Biden’s Wilmington garage. On Thursday, they informed the department of another document found in Biden’s house. Garland was briefed on the investigation on Jan. 5.”
“there are significant differences in the timeline of the Trump-related documents and those found at Biden’s office and home. The National Archives discovered the presence of records with classified markings at Mar-a-Lago in January 2022, after a protracted effort to reclaim presidential records that Trump had warehoused at his estate since leaving office. Trump sent an initial batch of 15 boxes back to the archive that month.
After discovering the material marked classified, the Archives forwarded the matter to the Justice Department, which soon subpoenaed Trump’s presidential office for all other documents with classified markings. The department also subpoenaed security footage to review the handling of the documents, which were kept in a storage room and Trump’s personal office.
But Justice Department investigators said evidence they collected showed that even after the subpoena, Trump’s team had not turned over everything in their possession — even as the ex-president’s aides presented the department with a signed attestation that all subpoenaed documents had been turned over. The FBI discovered another trove of sensitive records after executing a search at Trump’s estate in August, including some that he kept in his personal office.
Biden’s team, by contrast, has repeatedly emphasized its proactive approach to the discovery of the records. In two statements, White House lawyer Richard Sauber said Biden’s own team discovered the documents, immediately alerted the Archives and the Justice Department and returned the records. Similarly, they conducted additional searches and have pledged to cooperate with department investigators.
Trump sued last year to demand the return of documents seized by the FBI, a battle that reached the Supreme Court, only to result in a sharp rejection of his effort to sideline the Justice Department investigation. Republicans and Democrats on Capitol Hill have demanded assessments of the potential damage to national security caused by the handling of the documents.”
“The documents indicate the warrant was issued to investigate potential violations of the Espionage Act. That act states, among other things, that an official entrusted with sensitive or classified information who allows it to be taken away from its secure location through “gross negligence” or who knows it’s been removed from safety and doesn’t tell federal officials can be fined or imprisoned for up to 10 years. They also suggest an inquiry into possible improper removal or destruction of federal records, and obstruction of a federal investigation.
The receipt suggests 11 sets of documents were recovered, including items related to French President Emmanuel Macron, handwritten notes, photos, and top-secret materials.”
“According to a search warrant inventory that was unsealed on Friday, the FBI found 11 sets of classified documents, ranging from “confidential” to “top secret,” when it searched former President Donald Trump’s Mar-a-Lago resort in Palm Beach last Monday. The top-secret documents included some that were labeled “SCI,” or “sensitive compartmented information,” an especially restricted category derived from intelligence sources.
On the face of it, Trump’s handling of this information, which he took with him from the White House when he left office in January 2021, raises national security concerns at least as serious as those raised by Hillary Clinton’s use of a private email server as secretary of state. Trump has long maintained that Clinton’s mishandling of classified material when she ran the State Department was egregious enough to justify sending her to prison. But in his case, he says, the documents at Mar-a-Lago, despite their labeling, were not actually classified.
How so? According to a statement that Trump representative John Solomon read on Fox News after the search warrant and inventory were unsealed, Trump had a “standing order” as president that automatically declassified material he moved from the Oval Office to his residence at the White House. That explanation raises additional questions about Trump’s seemingly cavalier treatment of sensitive information”
“In July 2016, when then–FBI Director James Comey announced that the FBI had not found enough evidence to justify criminal charges against Clinton, he reported that 110 messages in 52 unsecured email chains had been “determined by the owning agency to contain classified information at the time they were sent or received.” He said “eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification.”
By comparison, the FBI’s list of items seized at Mar-a-Lago includes five mentions of “various” or “miscellaneous” top-secret documents, three mentions of “miscellaneous secret documents,” and three mentions of “confidential documents.” We don’t know how many documents were in each set or the precise nature of the information they discussed. But five sets of top-secret documents could easily contain more sensitive information than eight email chains that may have referred to top-secret material only briefly and/or in passing.
Comey said Clinton’s treatment of “very sensitive, highly classified information” was “extremely careless.” On its face, that judgment could support charges under 18 USC 793, which encompasses “gross negligence” in the handling of information “relating to the national defense”—a felony punishable by up to 10 years in prison. But Comey concluded that was not enough to justify prosecuting Clinton”
“Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case….In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice.”
The Mar-a-Lago search warrant was based on U.S. Magistrate Judge Bruce Reinhart’s determination that there was probable cause to believe the FBI would find “items illegally possessed” in violation of three statutes, including 18 USC 793. Although Trump has not been charged with any crime and may never face prosecution, his conduct arguably included some of the aggravating factors that Comey mentioned.
To start with, there is some evidence to support the inference that Trump’s alleged mishandling of classified material was “intentional and willful.” In January, after the National Archives and Records Administration (NARA) raised concerns that Trump had improperly removed documents that were covered by the Presidential Records Act, Trump’s representatives turned over 15 boxes. Noticing that some of the documents were marked as classified, NARA referred the matter to the Justice Department, which obtained additional documents from Mar-a-Lago under a grand jury subpoena in June. Around the same time, The New York Times reports, “a Trump lawyer” gave the Justice Department “a written declaration” saying “all the material marked classified in the boxes had been turned over.”
Judging from what the FBI says it found last week, that was not true. The FBI presumably presented evidence to that effect, possibly based on a Trump insider’s tip, in its search warrant affidavit (which, unlike the warrant itself and the inventory, remains sealed). That apparent misrepresentation may help explain why the search warrant cites not only 18 USC 793 but also 18 USC 1519, which makes it a felony, punishable by up to 20 years in prison, to knowingly conceal “any record, document, or tangible object” with “the intent to impede, obstruct, or influence” a federal investigation. Such concealment, if proven, would qualify as “efforts to obstruct justice,” another aggravating factor that Comey mentioned.
Because the volume, contents, and exact location of the documents seized by the FBI are uncertain, it is not clear whether the records at Mar-a-Lago amounted to “vast quantities of materials exposed in such a way as to support an inference of intentional misconduct,” another Comey criterion. The difficulty of assessing that question underlines how little information we have about the documents that were seized.
“Here is where Trump’s defense comes in. “The very fact that these documents were present at Mar-a-Lago means they couldn’t have been classified,” his office says. “As we can all relate to, everyone ends up having to bring home their work from time to time. American presidents are no different. President Trump, in order to prepare for work the next day, often took documents including classified documents from the Oval Office to the residence.” In light of that practice, the statement says, Trump “had a standing order that documents removed from the Oval Office and taken into the residence were deemed to be declassified.” It notes that “the power to classify and declassify documents rests solely with the President of the United States.”
Without denying that point, Trump’s critics argue that such a policy would be highly irregular and careless. “Whatever POTUS’ ‘powers’ might be to declassify docs,” former FBI agent Asha Rangappa says on Twitter, “there are good policy and practical reasons…to follow a process, and for that process to be documented and reflected on the document markings themselves.”
Rangappa says “accountability” requires that declassification of a given document be justified by a rationale dealing with the national security implications, which “allows for objections from others if the reasoning is based on an incorrect premise.” She also cites the need to protect intelligence sources from “blowback.” In addition to “being dangerous and bad for [national security],” she says, automatic declassification of any documents that the president happens to remove from the Oval Office would cause “confusion and inefficiency and distortions in our intelligence collection, foreign policy, and defense efforts.”
If “Trump telepathically declassifies hundreds of docs on his way out,” Rangappa adds, President Joe Biden “can telepathically reclassify them immediately, too. See how stupid this gets? Markings would mean nothing. No one would know how to store things.”
Accepting Trump’s argument that any documents at Mar-a-Lago were ipso facto declassified, notwithstanding markings to the contrary, that information would be legally available not just to him but also to the general public, assuming there was no other statutory justification for restricting access. Unless classification decisions are utterly arbitrary or were clearly wrong with regard to every document that Trump retained, that seems like a pretty reckless way to handle sensitive material. But it would be of a piece with Trump’s behavior as president, which reportedly included tearing up and flushing documents that were supposed to be preserved under the Presidential Records Act.
The issues that critics like Rangappa raise go beyond the question of criminal liability. Let’s say Trump’s purported “standing order” means he is in the clear under 18 USC 793. Let’s also stipulate that meeting the mens rea requirements for convicting him of obstruction or “willfully” concealing documents that belonged in the National Archives would be a tall order. Trump’s behavior and excuses for it nevertheless provide further evidence, in case any was needed, that he is not the sort of person who can be trusted to hold any position of political power, let alone the presidency.
Back in 2016, when Trump was intent on making his opponent look bad, he claimed to be moved by the concerns of “long-term workers at the FBI,” who he said were “furious” that Clinton got off with a wrist slap for recklessly endangering national security. Now that the shoe is on the other foot, Trump dismisses the FBI’s avowed concerns as transparent excuses for the partisan “witch hunt” that supposedly has victimized him throughout his political career. One need not be a fan of the FBI to see that Trump’s view of what qualifies as shameful and disgraceful is based on no principle beyond his petty personal interests.”
“A federal judge in August sentenced Daniel Hale to 45 months in federal prison for informing the American public about secret drone killings by the U.S. military.
Hale is a former Air Force intelligence analyst who shared classified documents with reporter Jeremy Scahill. Those documents, published in 2015 at The Intercept and in a book called The Assassination Complex (Simon & Schuster), revealed that secret drone assassinations in Afghanistan, Yemen, and Somalia had likely killed untold numbers of innocent people, a fact the U.S. government had concealed.”
“Hale’s sentence is an example of how the federal government misuses laws meant for spies who reveal classified information to our country’s enemies. Too often, it punishes citizens who reveal the government’s true behavior to their fellow Americans.”