Legal, political strategy in letting the FBI search Biden’s home

WASHINGTON (AP) – President Joe Biden’s decision to allow the FBI to search his Delaware home last week leaves him open to new negative attention and embarrassment after the earlier discoveries of classified documents at that home and a former office. But it’s a legal and political calculation that helps hope will pay off in the long run as he prepares to seek re-election.

The remarkable almost 13 hours of searching by FBI agents of the incumbent president’s Wilmington home is the latest political black eye for Biden, who vowed to restore decency to the office after the tumultuous tenure of his predecessor, Donald Trump.

But with his actions, Biden is doing more than simply complying with federal investigators assigned to investigate the discovery of the records. The president aims to show that, unlike Trump, he never intended to keep classified material — an important distinction that experts say reduces the risk of criminal liability. His lawyers have said full access to the home was granted “in the interest of advancing the process as quickly as possible.”

“If I were a lawyer and I represented the President of the United States and I wanted to show, ‘I am fully cooperative and I care about projecting transparency to the American public and I take this seriously,’ think that that’s the advice I would give, too,” said Mary McCord, a former senior Justice Department national security official.

That’s not to say she approves his handling of the documents.

“I think it’s wrong that he had these documents there,” she said. “It shows lapses at the end of the administration,” as Biden was ending his time as vice president under Barack Obama.

Biden’s personal lawyers first discovered classified materials on November 2, a week before the midterm elections, when they were clearing out an office Biden had been using at the Penn Biden Center in Washington. Since the initial discovery, Biden’s team has taken a welcoming approach to the investigation, though they haven’t been completely transparent in public.

They did not acknowledge the initial discovery before the election, although they quickly notified the National Archives of the discovery, returned the documents the day after they were found, and coordinated subsequent searches and discoveries with the Department of Justice.

They also don’t stand in the way of interviews with staff, including Kathy Chung, Biden’s executive assistant when he was vice president, who helped oversee the packing of boxes brought to the Penn Biden Center.

She feels some responsibility given her position, but she had “absolutely” no knowledge that classified documents were being packaged, according to a person familiar with her thinking. The person spoke on condition of anonymity to discuss an ongoing investigation.

Biden himself has said that he was surprised that the documents were in his possession. Last Thursday, frustrated by all the focus, he told reporters, “There’s nobody there.”

“I think you’ll find there’s nothing there.”

It all fits a theme: Biden and his aides claim the mishandling of the document was not intentional. As for Biden’s possible legal exposure, the question of intent is critical: Federal law does not allow anyone to store classified documents in an unauthorized locationbut it is only a prosecutable crime when someone is found to have “deliberately” removed the documents from a proper place.

Still, welcoming the FBI search could backfire as investigators press ahead should they find any evidence of crime. Agents last week seized an additional round of items with classified markings and some of Biden’s handwritten notes and materials from his tenure as vice president and senator.

This is in addition to the documents that Biden’s lawyers have already submitted. Agents could also choose to search the Penn Biden Center and Biden’s second home in Rehoboth Beach, Delaware while the investigation continues.

Criticism of Biden’s handling of the matter have come from Democrats as well as Republicans. Sen. Dick Durbin, D-Ill., the chairman of the Senate Judiciary Committee, said the president should be “embarrassed by the situation.”

“I think he should have a lot of regrets,” added Sen. Joe Manchin, DW.Va. Even Biden’s own lawyers have called it a “mistake.”

Republicans, meanwhile, have sought to use their newfound powers in the House, where they regained their majority this month, to investigate Biden’s handling of the documents and hope to capitalize on the investigation.

“It is troubling that classified documents have been improperly stored at President Biden’s home for at least six years, raising questions about who may have reviewed or had access to classified information,” House Oversight Chairman James Comer, R-Tenn., wrote. by asking for visitation logs to Biden’s residence.

Trump and some of his supporters have been more outspoken, arguing that Biden is guilty of worse mishandling of classified documents than Democrats sanction Trump. The former president is sure to push that charge hard as he fights to regain the White House.

The investigation into Trump is also centered on classified documents that ended up in a home. In that case, however, the Justice Department issued a subpoena to return documents Trump had refused to return, then obtained a warrant and seized more than 100 documents during a dramatic search of his Florida estate, Mar-a-Lago, in August. . Federal agents are investigating potential violations of three federal laws, including one governing the collection, transmission or loss of defense information under the Espionage Act.

In 2016, when the FBI recommended against criminal charges for Hillary Clinton over classified emails she sent and received through a private server when she was secretary of state, then-FBI Director James Comey said the Justice Department — in choosing which cases to bring over the past century – have looked for evidence of criminal intent. , evidence of disloyalty to the United States, the withholding of massive amounts of classified documents, or any effort to obstruct justice.

A year earlier, a lawyer for Clinton voluntarily gave the FBI a fingerprint containing about 30,000 emails from her tenure as secretary of state.

It is not clear whether agents in the Biden investigation have moved beyond the question of intent. The White House has not answered key questions, including how classified information from his time as vice president might have ended up inside his Delaware home. But Attorney General Merrick Garland appointed a special adviser to lead the probe given the sensitive politics surrounding it.

Garland stated Monday in response to a question: “We don’t have different rules for Democrats or Republicans. … We apply the facts under the law in each case in a neutral and impartial manner. That’s what we always do, and that’s what we do in the cases you refer to.”

A key test of the limits of Biden’s strategy revolves around the question of whether the president will agree to an interview with federal investigators if asked. White House officials have so far refused to say whether or under what conditions he would do so.

There may still be consequences outside of criminal prosecution for any employee found to have mishandled classified documents, including consequences for security clearances necessary for national security work.

Meanwhile, Biden and his staff try to refocusing the media and public back on his agenda. White House press secretary Karine Jean-Pierre has said she will not answer questions about the investigation during her daily briefings, instead referring most inquiries to the Justice Department, White House lawyers or Biden’s personal lawyers.

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