The recently released report from Special Council Robert Hur which details his investigation of the classified documents case against Joe Biden is fascinating in multiple ways. As you’ve probably seen, the major headline out of the report is the very first sentence – that President Biden will not be charged with any crime.
For a lot of people, that’s all they need to know. But the other 344 pages of the report paint a very disturbing picture of how “casually” national security information has been treated by Joe Biden throughout his career. In addition, it perpetrates a specious reading of the Espionage Act that was first promulgated by James Comey in his investigation of Hillary Clinton for the same crime.
Hur states the main reason for not charging Biden (apart from an untested legal view1 that a sitting President can’t be indicted) is that a jury would never convict him because they would be too sympathetic to Biden’s “elderly” condition and the infirmity of his poor memory.
The report attempts to soften the impact of Biden’s careless document handling by pointing out that most modern-day Presidents and Vice-Presidents have taken classified information home with them after leaving office. And while this “common” practice is generally illegal according to the Espionage Act, no Ex-President or Vice-President has ever been charged with a crime for doing so, with one glaring exception – Donald Trump.
Hur claims the reason Donald Trump is being prosecuted for having classified documents in his home is that, unlike Biden, Trump obstructed justice by not handing over all classified documents in his possession when asked to do so by the Justice Department. While this may turn out to be true, only 1 of the 37 counts filed against Trump in his document case is for obstruction of justice. 31 of those counts are for improperly retaining and storing classified documents in an unauthorized location. This is the exact same thing Biden and Hillary Clinton both did. Hur offers no technical or legal explanation as to how these specific 31 counts of improper document retention against Trump differ in any way from Biden’s improper retention of classified material at his home.
The report also reveals that the volume of classified information retained by President Biden was far greater than initially reported by the Administration and in the news media. The repeated claim that Biden had only six or so “documents” turns out to be patently false. Doing a rough addition of all the caches of classified documents found by Hur’s team in Biden’s house, garage, and other locations adds up to hundreds of classified documents, not just six.
In addition to keeping a larger number of documents than previously known, the report also finds that Biden improperly stored classified information for decades, all the way back to his time as a US Senator. This highlights another incongruity. If we are to truly assess the risk to national security and the likelihood of any sensitive information falling into the wrong hands, Biden’s case is far worse than Trump’s. Here’s why –
Trump retained classified information in his home, outside of a secure government facility, for 18 months (February 2021 – September 2022). Biden has done so for more than 40 years. The classified information Trump retained was located in one physical place, at his residence at Mar-a-Lago. Biden retained classified information in multiple places – his house in Delaware (in multiple rooms within the house and garage), the University of Pennsylvania’s Biden Center, a rented house in Virginia, and at the University of Delaware.
Because of the far longer time of exposure, and much wider dispersion of classified documents, the national security risk created by Joe Biden is considerably greater than the corresponding risk created by Donald Trump. Worse, this long-term security hazard, for which Biden is directly responsible, isn’t being corrected or even addressed. Instead, all legal attention is being focused on prosecuting Trump. Trump is not innocent in this matter. But his case is substantially less significant in terms of risk to national security than that of Biden or Hillary Clinton. Not only is this unequal justice, but a much bigger underlying problem is being ignored.
Early on in his report, Hur appropriately addresses the question of whether or not Biden even knew he had classified documents improperly stored in his home once he was out of office. The supposition is that they could have been put there by his staff without Biden’s knowledge. The report found that during the writing of his memoir in 2017, Biden had numerous recorded interviews with his ghostwriter. In one of those recorded sessions, Biden told the ghostwriter that he “…just found all the classified stuff downstairs“. Biden, a private citizen in 2017, obviously knew he had classified material in his home and never reported it to the proper authorities. This was a full 5 years before the investigation into his classified document retention even began.
A major grievance we have with the Hur report is the same as we had with James Comey’s report on investigating Hillary Clinton for improperly retaining classified information on a server in her home. Hur speaks of the presence or absence of “intent”, and whether or not the document retention was “willful.” “Intent” and/or “willfulness”, are prerequisites for violations in most of the sections of the Espionage act. However, they are NOT prerequisites, or are even mentioned, in Section F of that act2, which is the pertinent section for this case. Instead, “Negligence” is the operative term and standard in section F of the statute, lack of willfulness or intent notwithstanding.
The reason this is significant is twofold:
First – we do not believe Hillary Clinton, Joe Biden, or Donald Trump were willfully or intentionally providing classified information to our adversaries. That would be a violation of the more well-known treason sections of the espionage act. However, all three were obviously negligent in safeguarding the classified material they retained that related to national defense. That makes all of them subject to section F of 18 US Code 793, the part of the espionage act which focuses on negligence instead of intent.
Second – no one “intends” to be negligent. You either are negligent or you are not. Because the unauthorized disclosure of national security information can have catastrophic consequences, negligence in protecting it carries the same weight as “willfully” or “intentionally” disclosing it to unauthorized parties. That is the whole point of section F of the espionage act.
Describing Biden’s actions as likely being “unintended” (as Hur does in his report), is completely irrelevant to this section of the law. Much like James Comey did in the Hillary Clinton case, we believe this is an attempt to obfuscate by taking advantage of the fact that intent is a very relevant and well-known premise for prosecuting the vast majority of criminal acts. When Comey and Hur conflate “intent” (or lack thereof) with the wholly separate concept of negligence, it becomes easier for readers (who are more familiar with criminal meaning of “intent”) to simply accept their flawed conclusion of innocence.
There is much more in the report than what we’ve discussed here, including the question of whether or not handwritten notes that contain highly classified information count as personal property. As his personal property, Biden asserts these notes are fundamentally different from formal classified documents and are thus not subject to the espionage act. He makes this claim even though the word “note” is specifically stated in section F of the Espionage Act as an artifact that is subject to the law. The disposition of Biden’s notes was belabored in the report, as if to intentionally take the focus off the fact that Biden did in fact also retain hundreds of “formally” classified documents.
Tellingly, and mentioned no less than five times in Hur’s report, is the answer Biden gave in a 2022 CBS interview when he was asked about reports that former President Trump had kept classified documents at his home:
“How that could possibly happen. How one-anyone could be that irresponsible. And I thought, what data was in there that may compromise sources and methods?”
This shows how completely and totally dishonest Joe Biden is as a person. He knew full well as he was speaking these words that he himself kept classified documents in his own home. He was every bit as irresponsible, much more so in fact because he had been engaging in the practice for decades.
The overriding theme of the report is that Joe Biden was grossly negligent with his handling and retention of classified information consistently throughout his 40+ year government career. Voluminous evidence uncovered by the Special Prosecutor supports this finding. Despite that, Biden will face no legal consequences for his actions. The presumption that Biden would be too sympathetic and too mentally impaired to be convicted by a jury, and that Trump is not mentally impaired or sympathetic and could be convicted, appears to be the only difference between the two cases with regard to violations of the espionage act.
How ironic that the conditions of age and memory loss, which Joe Biden and his staff are vehemently pushing back on, have turned out to be his salvation in this case. The conundrum is that if he is truly too impaired to be indicted, how can he be competent to run the nation?
1 From the Legal Information Institute of the Cornell Law School: Indictments of a sitting or former president remain an uncertain area of Constitutional law. The Constitution does not directly address indictments for either, and the Supreme Court has never had an opportunity to rule directly on the issue.
2 Here are the exact words from section F of the Espionage Act (18 US Code 793): “Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer— Shall be fined under this title or imprisoned not more than ten years, or both.”
One Response
Oh, where to start on this…
… way to much minutiae to wade through for me. Your assessment is spot on and the inconsistent application of the law is exactly the way those in power like it. Laws no longer mean anything when managed by criminals.
At one time in our history, laws were simple and interpreted in a somewhat honest manner. Interpretations have manipulated the meanings of our laws. Two hundred years of manipulation and corruption from law enforcement to our highest courts, to save friends or penalize enemies, have turned our law books of simple standards into millions of books of precedents. Basic laws and punishments twisted by two hundred years of expanded language that exponentially expands interpretations and enforcement.
In a similar fashion, the concept of ‘secret information’ is lost to millions of people in an oversized, revolving door government of very good to very corrupt people that just raise their respective hands to attain access to said information. You want to keep a security secret, don’t tell anyone. If you want many people to know just tell one other person that swears to never share it. Put it in writing, eventually everyone will know. Save that same information electronically and forget about it! Now think about all those government employees and politicians privy to private secret information… the information is then ubiquitous. Add financial reward for sharing said information by the corrupt and…
So both areas of concern (laws and secret information) are flawed almost beyond repair. This happens in democracies where government power grows by feeding itself from diminishing non-government taxpayers. Sooner or later revolt, collapse or a transformation into socialism takes place, whereby the political party in charge makes and interpret all the rules – selectively enforcing them to protect and enrich there constituents. Does immigration, crime in our cities and courts creating crimes against political opponents ring a bell? It’s growing with impunity. Without consequences for the rogue DAs and Judges this corruption will expand.
I know, doomsday theorist and I should have more hope but today, our laws are in extreme jeopardy. We may get some temporary relief with a major change of heart for many in the upcoming elections. We can hope!