I Forgot!

Special Counsel Hur invokes the Steve Martin defense to spare Biden

On Saturday I detailed some of the pretzel logic employed by Special Counsel Robert Hur in his conclusion that Biden’s retention of notebooks containing classified material couldn’t be reasonably prosecuted. Much of the investigation, however, revolved not around those notebooks, but around other classified documents, marked as such, found in Biden’s Delaware residence. Hur’s approach to this aspect of the investigation is no less head scratching.

This area of the investigation centered on classified documents relating to the military and foreign policy in Afghanistan. Or, as our learned President repeatedly spelled it in his writings and files, “Afganastan”.

Now, a crucial thing to remember is that it isn’t enough to simply be in possession of and holding these classified documents in an unsecure setting in order to be in violation of the law. One has to be doing it “willingly”, or in other words one has to know that the documents are possessed, and know that they should be secured. That is why a classified document that mistakenly ends up in a filing cabinet in a home is not by itself grounds for prosecution.

And that is why, out of all of the 89 classified documents held by Biden in various locations, the “Afganastan” folder (I’m not kidding…that is how the report itself spells it) became a central part of the investigation. As Hur’s report details, unlike many of the other documents, there is very strong evidence to show that Biden was aware of these documents being in his possession outside of a secure location. During his recorded interviews with his ghostwriter Mark Zwonitzer, Biden seems to be referencing material from this folder, and he even at one point says to Zwonitzer “I just found all of the classified stuff downstairs”. One would think such a statement would be pretty conclusive.

One problem, however, is that Biden’s interview with Zwonitzer took place in his Virginia home in 2017, while the documents were found in the garage of Biden’s Wilmington, Delaware home in 2022. Now, given that Biden actually moved out of the Virginia home and back to the Delaware home in 2019, the documents having been in two different locations on either side of that move doesn’t seem to be a difficult puzzle to solve. And indeed the report goes into great detail about the move, trying to establish that the “Afganastan” folder box moved with Biden from Virginia to Delaware in 2019. These details include two pictures of his Delaware home office taken 2 months apart, one before the move and one after. In the post-move picture, the box can be seen sitting next to his desk. while in the pre-move picture, there is no box. The box even has the words “Cabinet Desk File” written on the flaps, indicating the pre-move location of its contents, a practice with which anyone who has ever moved houses is familiar. It doesn’t take a genius to draw the obvious inference.

But Hur is perhaps the least confident prosecutor that has ever existed. Despite himself finding the evidence compelling, he just doesn’t think he could possibly convince a jury that the documents had been “willfully” retained by Biden. Adopting the mantle of a defense lawyer, he begins to imagine all of the defense arguments that a jury might find convincing, and to be sure, this seems like a reasonable thing to do before wasting money on a doomed prosecution. But it also seems obvious that he is straining to find a reason not to charge Biden.

He worries that, despite the evidence above, a jury might not draw the obvious inference, and will conclude that the classified documents never were in Virginia. He worries that, although the “Afganastan” folder contained clearly marked classified documents, those documents may no longer be all that sensitive, and so a jury might not care.

But his most remarkable imagined defense is this:

It is possible that Mr. Biden encountered the classified Afghanistan documents at the Virginia home in February 2017, told Zwonitzer about them, and then, soon after, forgot about them and did not willfully retain them.

Ah yes, the always effective “I forgot” defense! I guess Steve Martin really was onto something.

Beyond the plain absurdity, this is a claim that ought to be easily countered. It is, in fact, an admission of guilt. In order to have “forgotten” that he possessed the classified material, he must first have to have known that he had it, and at that point he was, by definition, “willfully” retaining it.

In virtually every other description in the report of someone discovering classified documents among Biden’s papers, the immediacy with which they acted on the discovery is notable. For example, the original discovery of classified documents was made by Biden’s personal counsel, Patrick Moore, on November 2, 2022. By the next morning the National Archives had the documents in its possession. That is how quickly Moore, and everyone else he told about it, acted on the discovery.

Yet, somehow, upon discovering classified documents himself, Biden is so unfazed by the fact that not only doesn’t he immediately report it to anyone, he waits long enough to completely forget the discovery, and so ends up keeping possession of the documents for nearly 6 more years. And this, according to Hur’s theory, somehow constitutes a reasonable defense? Seriously?

It gets worse. The report had earlier related an incident in the immediate days after leaving the Vice-Presidency and moving into the Virginia home in which Biden had gotten an aide to return to the White House a “slim binder” containing some classified materials that he still had. Hur worries that this incident could be presented as an indication that Biden had no intention of ever keeping any classified documents.

But another inference the evidence permits is that Mr. Biden returned the binder of classified material to the personal aide because, after leaving office, Mr. Biden did not intend to retain any marked classified documents. As Mr. Biden said in his interview with our office, if he had found marked classified documents after the vice presidency, "I would have gotten rid of them. I would have gotten them back to their source.... I had no purpose for them, and I think it would be inappropriate for me to keep clearly classified documents." Some reasonable jurors may credit this statement and conclude that if Mr. Biden found the classified Afghanistan documents in the Virginia home, he forgot about them rather than willfully retaining them.

But again, if he found them, he was at that very point “willfully” retaining them, and by his very own claim should have and would have gotten rid of them. And yet he didn’t. This could be the first time in the annals of criminal investigations in which evidence that the suspect did in fact do what he claims he would never have done is somehow construed to be evidence supportive of his defense. Sure, a juror may conclude as Hur imagines, but such a jurror cannot be deemed “reasonable”.

Hur’s search for reasons not to charge Biden even become self-contradicting. The report began its explanation by saying:

When the FBI recovered the documents in 2022. Mr. Biden was the sitting president, and he was authorized to have classified documents in his private home. Thus, any criminal charges would most plausibly depend on Mr. Biden's possession of the Afghanistan documents in the Virginia home in 2017, when he was not in office.

Fair enough. But later, in his search for reasons not to charge Biden, Hur says:

We also expect many jurors to be struck by the place where the Afghanistan documents were ultimately found in Mr. Biden's Delaware home: in a badly damaged box in the garage, near a collapsed dog crate, a dog bed, a Zappos box, an empty bucket, a broken lamp wrapped with duct tape, potting soil, and synthetic firewood. A reasonable juror could conclude that this is not where a person intentionally stores what he supposedly considers to be important classified documents, critical to his legacy. Rather, it looks more like a place a person stores classified documents he has forgotten about or is unaware of.

Ignore for the moment the paradox that finding classified documents stored in such a state could actually be a defense for the person holding them. I’m no lawyer, but it seems to me that any competent prosecutor could easily explain to a jury that the state and location of the documents in Delaware in 2022 has literally no bearing whatsoever on whether or not Biden knew in 2017 that he possessed the documents in Virginia. But that, apparently, is a wall just too high to climb for Hur.

And he again fails to see the timeline problem of his argument when he raises Biden’s cooperation with the investigation:

Many will conclude that a president who knew he was illegally storing classified documents in his home would not have allowed a search of his home to discover those documents and then answered the government's questions afterwards. While various parts of this argument are debatable, we expect the argument will carry real force for many reasonable jurors.

Not if it is explained that Biden’s state of mind in 2022 is no indication of what he knew in 2017, it won’t.

Again, it is clear that Hur was straining to come up with reasons not to charge Biden. And to be honest, stripped of the context of our times, I personally wouldn’t care that much. The government almost certainly overclassifies information, out of both paranoia and a disdain for transparency, so I suspect that the danger represented by unsecured classified information is overhyped. I also expect that Biden isn’t unique in this respect relative to other Presidents and VPs, and probably even Senators (some of the documents found actually date to his time in the Senate). But in the context of our times, in which Biden’s own DOJ is not only using unique and novel legal theories to pursue his predecessor and main political rival, but is in fact continuing to pursue charges that are identical to the very ones that Biden has just been given a pass on, the Hur report is just another of the many indications that we are currently operating in a politicized, two-tiered justice system. And that, I think, should be very troubling to everyone.