“If Joe Biden will not be prosecuted for mishandling classified material, why does Donald Trump face 40 felony charges based on conduct that looks broadly similar? It is a question that Trump’s supporters were bound to ask after Special Counsel Robert Hur, formerly a Trump-appointed U.S. attorney, released his findings about Biden last Thursday. But Hur’s report includes important details that plausibly explain the contrasting outcomes in these two cases. Although Biden’s embarrassingly hypocritical lapses belie his avowed concern about safeguarding material that could compromise national security, the evidence of criminal intent is much stronger in Trump’s case.”
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“That provision applies to someone who “willfully retains” national defense information when he “has reason to believe” it “could be used to the injury of the United States or to the advantage of any foreign nation.””
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“”Contemporaneous evidence suggests that when Mr. Biden left office in 2017, he believed he was allowed to keep the notebooks in his home,” Hur writes. Biden took the same position in an interview with Hur’s office, saying “his notebooks are ‘my property’ and that ‘every president before me has done the exact same thing,’ that is, kept handwritten classified materials after leaving office.” In particular, he cited “the diaries that President Reagan kept in his private home after leaving office, noting that they included classified information.”
Hur does not agree with Biden’s understanding of the law. “If this is what Mr. Biden thought, we believe he was mistaken about what the law permits,” he says. But he adds that Biden’s position “finds some support in historical practice.” The “clearest example,” he says, is “President Reagan, who left the White House in 1989 with eight years’ worth of handwritten diaries, which he appears to have kept at his California home even though they contained Top Secret information.”
Yet as far as Hur could tell, neither the Justice Department nor any other federal agency took steps to “investigate Mr. Reagan for mishandling classified information or to retrieve or secure his diaries.” Hur concludes that “most jurors would likely find evidence of this precedent and Mr. Biden’s claimed reliance on it, which we expect would be admitted at trial, to be compelling evidence that Mr. Biden did not act willfully.””
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“the classified Afghanistan documents did not come up again in Mr. Biden’s dozens of hours of recorded conversations with the ghostwriter, or in his book. And the place where the Afghanistan documents were eventually found in Mr. Biden’s Delaware garage—in a badly damaged box surrounded by household detritus—suggests the documents might have been forgotten.”
That explanation, Hur says, is reinforced by the fact that Biden’s memory “was significantly limited, both during his recorded interviews with the ghostwriter in 2017” and “in his interview with our office in 2023.””
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“Hur notes that Biden’s “cooperation with our investigation, including by reporting to the government that the Afghanistan documents were in his Delaware garage, will likely convince some jurors that he made an innocent mistake, rather than acting willfully”
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“Unlike “the evidence involving Mr. Biden,” Hur writes, “the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts. Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it.”
That alleged conduct underlies eight additional felony charges against Trump. “In contrast,” Hur writes, “Mr. Biden turned in classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations including his homes, sat for a voluntary interview, and in other ways cooperated with the investigation.” Trump’s alleged defiance and deceit, in short, distinguish his conduct from Biden’s: They suggest that Trump retained national defense information “willfully,” as required for a conviction under 18 USC 793(e), and that he committed additional crimes to cover up the underlying offense.”
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“Hur plausibly concluded that criminal charges against Biden were not appropriate because there was insufficient evidence that he “willfully” retained documents he was not supposed to have. But that does not let Biden off the hook for repeatedly violating the standard of care that he himself insists is essential to protecting national security.”
https://reason.com/2024/02/11/trumps-alleged-defiance-and-deceit-distinguish-his-handling-of-secrets-from-bidens/
https://www.yahoo.com/news/young-gamers-shook-intelligence-world-120948421.html
“More than 100 classified documents relating to Ukraine, China, the Middle East, the Pacific, and terrorism are now believed to be in the public domain after they were posted in an obscure internet forum last month.
It comes after White House officials said they were investigating the appearance of highly classified briefing documents related to Ukraine on Twitter on Thursday.
The US Department of Justice said it had launched an investigation into the leak.
American officials said Russia or pro-Russian elements were likely behind the leak, but did not give further details.”
“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.””
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“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.”
“State secrets privilege, as the doctrine is known, has a long and sketchy history, evolving from bad official behavior after a 1948 plane crash that killed several civilian observers. When the observers’ widows sued in United States v. Reynolds, the government argued that information about the plane was too super-secret to be revealed in court. The Supreme Court agreed that some things are too sensitive to be used in legal proceedings and gave the executive branch a free pass to invoke the phrase “national security” as a shield against accountability.
“Decades later, declassified documents revealed that the flight had no national security import at all and that Air Force officials had perjured themselves when they told the Court otherwise,” Reason’s Matt Welch observed in 2006. “In the meantime, the ruling provided the framework for executive privilege, which the Bush administration has been trying to expand.”
Not just the Bush administration appreciated state secrets privilege, of course; all presidents enjoy the ability to act without consequence. That’s how we end up all these years later with the question of whether the state secrets privilege is so broad that it can protect federal agents from the need to square spying on Americans with the protections afforded by the Constitution.”
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“the government isn’t arguing just that some information is too sensitive for the public, but also that it should be kept from judges’ eyes. That would leave people with no recourse at all when federal agencies invoke the magic phrase “national security” to block lawsuits alleging rights violations.”