The Biden-Documents Mess

Republicans are, unsurprisingly, in an uproar over the discovery, in three different locations associated with President Joe Biden—his former office at the Penn Biden Center for Diplomacy and Global Engagement, a room in his Delaware home, and his garage—of documents marked as classified. But there is some confusion in the G.O.P. ranks about what the focus of their ire should be, and last week it fell to Martha MacCallum, of Fox News, to try to clear things up. She was questioning Representative James Comer, of Kentucky, who had just been speculating about the University of Pennsylvania being in the pocket of Chinese Communists. Comer had suggested, in another interview, that he was concerned not so much about classified documents ending up in a former Vice-President’s home as about whether Biden was being treated differently than Donald Trump was when documents marked classified were found at his home, at Mar-a-Lago. “Do you mean that?” MacCallum asked. “Or is it a big deal that he had these documents, and are you concerned about the national-security implications?”

“I’m concerned, because we believe that Hunter Biden, especially, is a national-security risk,” Comer said, referring to the President’s son. At the same time, “every President has accidentally taken documents that were deemed classified,” he continued. “Yet they were never raided. They never were treated with a special counsel, like Donald Trump was. Now we find out that Joe Biden did the exact same thing that every President has done.”

The complaint from Comer, who is the new chair of the House Committee on Oversight and Accountability, was, to say the least, muddled. Biden has in fact been “treated with” a special counsel: Robert Hur, whom Attorney General Merrick Garland appointed on January 12th. It’s not obvious that every President has taken home classified documents, let alone done so with Trump’s obstruction, sense of entitlement, and defiance of both the National Archives and the F.B.I. (Biden also didn’t try to overturn an election, but that’s another story.) Hundreds of documents were found at Mar-a-Lago; so far, Biden’s case seems to involve about twenty. One of the many unfortunate aspects of the case, though, is that the count rose as the Biden team let the news come out in dribs and drabs in the course of a week.

The basic time line appears to be this: On November 2nd, a week before the midterm elections, Biden’s personal lawyers, who were packing up his office at the Penn Biden Center, found Obama Administration documents, some of them marked as classified. (The Center didn’t open until a year after Biden left the Vice-Presidency; it’s not clear where the papers were in the meantime.) The lawyers notified the National Archives, which informed the Department of Justice. Both Biden and Secretary of State Antony Blinken, who was the Center’s managing director, have said they weren’t aware that any such records were there. On November 14th, Garland asked a U.S. Attorney to take a look.

More than a month later, on December 20th, Biden’s lawyers told the Justice Department that they had found the documents that were in his garage at home. On January 9th, CBS News reported on the papers found at the Biden Center. The Biden team confirmed the report, without, at first, mentioning the garage papers. Two days later, according to the team, the lawyers found another document, in the room in the house. The next day, Karine Jean-Pierre, the White House press secretary, said in response to a question about the search process, “You should assume that it’s been completed.” But five more documents were apparently found in the room that evening.

The communications from the White House have been, in short, a mess. When Peter Doocy, of Fox News, asked Biden at a press conference, “Classified material next to your Corvette—what were you thinking?,” the President decided to defend the honor of his car, a 1967 Stingray convertible: “My Corvette’s in a locked garage, O.K.? So it’s not like it’s sitting out in the street.” Cue a New York Post headline announcing, “HUNTER BIDEN HAD ACCESS TO DAD’S CORVETTE,” accompanied by a photo of the President’s son seated in the car, which was purportedly found on a laptop belonging to him—the subject of yet another saga.

Comer, who can now wield subpoena power, announced this month that the Oversight Committee will ramp up an investigation into Hunter Biden’s business dealings and those of other family members and associates. And last week, thanks to the promises that Kevin McCarthy appears to have made to secure the Speakership, some of the most Trumpist and conspiracy-minded members of the House G.O.P.—Lauren Boebert, Paul Gosar, Marjorie Taylor Greene, and Scott Perry—got seats on the committee. Greene said that the documents case is an example of a “two-tiered justice system,” that Biden should be impeached, and that the timing of the disclosures was “so much B.S.”

Republican-controlled hearings on the Biden documents will almost certainly be distorted by an imperative to protect Trump. That is a pity, for more than one reason. Comer may have come to the issue in a backward, partisan way, but there are big problems with the government’s classified-documents system. For one thing, there is wide agreement that the United States has an overclassification addiction. As Oona Hathaway, a Yale law professor, told NPR last week, no one even knows exactly how many classified documents there are. It’s estimated that some fifty million new things get classified each year, and the more than two million people with security clearances, military and civilian, can potentially add to the pile, by one route or another. Presidents do not have the power to declassify documents psychically, as Trump has suggested, but their power to do so in other ways is surprisingly broad and ill-defined, governed largely by executive orders and precedent. That reality had complicated the legal case against Trump even before Biden’s lawyers found the first documents.

The President has not yet said for sure if he will run again in 2024. The affair of the documents may prove something of a stress test. Republicans would no doubt like to see all these story lines—the documents, Hunter, the Corvette, Communists—merge into a lurid fog that obscures the real line between Trump’s case and Biden’s. They are not the same, and that is something worth emphasizing. But the fact that these two very different men, for different reasons, both had classified documents in their homes should be cause for reflection about our system of secrecy, too. 

The Biden-Documents Mess
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