Classified Insanity

Where to begin with the Hur Report on Biden's retention of classified documents?

On Thursday Special Counsel Robert Hur released his report on the investigation into President Biden’s personal retention of classified documents, the first sentence of which declares that “no criminal charges are warranted in this matter.” Talk about burying the lead. That, it turns out, is probably the least interesting thing the report had to say.

The aspect of the report that most people will be focusing on is one of the reasons that Hur provides for not recommending charges, and it isn’t, as the New York Times headline would have you believe, because Biden has been “cleared” of any wrongdoing.

(As an aside, for anyone still unconvinced that the NYT is a completely partisan rag, consider the difference between that headline, “Biden cleared”, and the headline it placed on its article about the Mueller report on Trump: “Stops Short of Exonerating President”.)

One of the reasons Hur does not recommend charges is that Biden is too old, enfeebled, and brain addled for Hur to be able to convince a jury that he had the requisite state of mind to have consciously violated the law. Of course, those are my adjectives, not Hur’s, and he puts it in softer terms, but the meaning is clear:

We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory. Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him-by then a former president well into his eighties-of a serious felony that requires a mental state of willfulness.

Sounds like Hur is suggesting that Biden is not competent to stand trial. Our President. The man with his finger on the nuclear button. The man who is, at least as of yesterday, his party’s pick to be our President for yet another 4 years. Amazing.

And just think about that rationale for not pursuing charges, that a defendant is a “sympathetic” character who jurors will be reluctant to convict. As Walter Kirn pointed out on Matt Taibbi’s livestream (13:15 mark), such logic would have recommended against prosecuting OJ Simpson. “OJ Simpson is a former football star with many fans, and jurors will search hard for reasonable doubt.” Indeed they did!

In any event, what I really wanted to focus on is a less spectacular, but to me no less interesting, revelation in the report. One of the allegations being investigated was that when Biden left office in 2017, he had kept handwritten notebooks with classified information in them, and stored them in a desk at his home rather than securely with the National Archives. He then used them when discussing the writing of his post-VP book with his ghostwriter. I say “allegation”, but it isn’t really just an allegation. It is a fact that he did do this. No one disputes it.

Hur’s team believes that the law requires such notebooks to be held securely at the National Archives. Biden’s legal team argues that the notebooks are his own “personal property” and therefore are not subject to the laws regarding storage of classified information. And there does seem to be some ambiguity about this. As Hur’s report points out, President Reagan’s personal diaries became evidence in DOJ litigation back in 1990, and while the DOJ at the time characterized them as “currently classified”, they remained in Reagan’s personal possession and no steps were taking to secure them. Hur uses this ambiguity as one reason not to pursue charges against Biden.

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.

But think about that. Why would there be any uncertainty or ambiguity about this at all? The entire logic behind these laws about maintaining classified information in a secure setting is that the information would somehow endanger national security if it got into the wrong hands. Now, there is no doubt that the government over-classifies things, so that much of what is classified probably has no need to be. But it is the information that is relevant to that question, not the means used to record the information.

How does it make any sense at all to think that if highly sensitive information X is recorded in a Top Secret memo on White House stationary, it must be held in a highly secure section of the National Archives lest the nation be endangered, but if that very same highly sensitive information X is recorded in the “personal property” of the President or Vice President, it doesn’t need to be? That is clearly nuts. But that, apparently, is exactly what President Biden actually believes. Or at least did back when he was still compos mentis.

In fact, as the Hur report reveals, when Biden left office in 2017 he apparently had a dispute with his own staff about whether he could retain notecards (not to be confused with his personal notebooks) that contained highly classified information, or whether they had to be placed with the National Archives.

In a recorded conversation with his ghostwriter in April 2017, Mr. Biden explained that, despite his staffs views to the contrary, he did not think he was required to turn in his notecards to the National Archives-where they were stored in a SCIF-and he had not wanted to do so.

Again, it is strange that Biden, or anyone else really, would think that the important thing was not the information itself, but rather the way in which it had been recorded. But ultimately Biden had no reason to worry about the notecards being taken away, because he had the same type of information written down in his notebooks, and Hur reports that:

As he told his ghostwriter during a recorded interview, the same staff who arranged to secure his classified notecards "didn't even know" he had retained possession of his classified notebooks.

Which was lucky for Biden, because had they known, they probably would have insisted that those too had to go to the National Archives. And lucky for Biden even further because Hur somehow manages to interpret this sequence of events as providing Biden with a plausible defense against having knowingly kept classified information in an unsecure location. Hur’s logic, such as it is, is that because Biden didn’t believe that that notecards had to be secured:

At trial, he would argue plausibly that he thought the same about his notebooks.

This, despite the fact that ultimately he wasn’t allowed to retain the notecards, he knew that his notebooks contained the same classified information, and he also knew that the same staff that had insisted that he couldn’t keep the notecards was unaware that he still had the notebooks. The mind boggles at the tortured logic needed to think that these facts help, rather than hurt, any defense Biden might have.

Hur’s report brings to mind that of James Comey and his investigation of Hillary Clinton over similar charges regarding the storage of classified information. After detailing how Clinton had in fact broken the law, Comey proceeded to gaslight the public by concluding that “no reasonable prosecutor” would pursue charges. We are getting gaslit again. One can’t help but wonder, just what does a Democratic presidential candidate need to do to get prosecuted around here?