All The President’s Men: Biden’s Use of Lawyers Raises Additional Concerns Over Handling Classified Material

Below is my column in the New York Post on the curious use of lawyers by President Joe Biden in the classified document controversy. There was a clear decision made to rely on his own counsel rather than the FBI or security officers after the discovery of highly classified documents in a closet in a private office. The decision clearly brings greater control and protection for the President, but it can itself be viewed as additional evidence of gross mishandling of classified material. In the movie “All The President’s Men,” Woodward chastises his colleague Bernstein that “I don’t mind what you did; I mind how you did it.” President Biden may face the same objection in his decision to use counsel to search for classified material.

Here is the column:

The discovery of a fourth set of classified documents, at the Biden residence in Delaware, has further undermined the White House’s virtual mantra that the president “takes classified documents very seriously.”

Putting aside the repeated movement of highly classified documents over six years, one curious element has emerged in this scandal: the use of private counsel.

Not only did President Joe Biden enlist lawyers to clear out his private Washington office; he then used them — rather than security officers or the FBI — to search for additional classified documents.

The initial use of lawyers is notable. While it seems a fairly pricey moving crew, Biden could argue a trove of documents might require a judgment on where they should be sent and whether they belong to Biden, the Penn Biden Center or the government.

But why was a legal team sent in six years after Biden took the documents on leaving as vice president? Were the lawyers specifically selected because they had clearances, an acknowledgment there might be classified material unlawfully housed in the office?

After the fourth batch of documents was discovered this week (the third found in Delaware), Richard Sauber, referred to as the “special counsel to the president,” stressed that he has a clearance. Sauber admits the lawyers who found the first batch at the residence didn’t have clearances but says he found the later documents.

It remains unclear which lawyers were involved in which discoveries, whether they had clearances and (if so) at what level. In fact, it seems to suggest Biden continued to use uncleared lawyers after his team found highly classified documents Nov. 2 in the Penn Biden office closet in Washington.

That itself could be viewed as gross mishandling of classified information.

It’s strange Biden did not use security officers or the FBI to conduct further searches. The president has a host of people who regularly handle classified material. So why use the lawyers?

The answer appears the same as in the case of Hillary Clinton’s emails: control. Using private counsel allows Biden to raise attorney-client privilege. Trump also used counsel, but eventually the FBI raided his home to search and remove not just classified material but documents found in boxes with that material.

While that attorney-client privilege can be overcome under a “crime/fraud exception,” it adds a level of initial protection. It also allowed Biden to control the discovery and initial record of the discovery of classified information.

The key to any investigation will be the chain of custody extending back to the documents’ removal in 2017 when Biden left office. How these documents appeared in their discovered locations is known only to his lawyers. It’s a link in the chain of custody that Biden effectively controls.

With Mar-a-Lago, the FBI was criticized for staging documents to be shown in the storage room. The photos were then leaked to an eager media. There will be no staged photos of documents alongside Time magazine covers for Biden.

Nor were documents he housed with classified documents removed. Indeed, it’s not clear if the FBI will know what documents were stored in the same boxes.

What was potentially lost is significant. Classified documents are generally supposed to be in folders with a thick, colored border and large printed classification warnings. Were some of those folders observable before they were moved? If so, anyone could tell a pile contained classified material, including the president and passersby.

Likewise, the initial discovery could show the context of surrounding material. The FBI at Mar-a-Lago carefully photographed that context and its search. Here, we’re relying on counsel to have kept such a record when most lawyers would be reluctant to do so given the risk to their client.

The key is that unlike FBI agents, these lawyers are not acting on behalf of the public interest but for the president’s personal interests.

If there are criminal charges, the key witnesses will be lawyers representing the president as an individual. They are more likely to minimize incriminating or embarrassing elements.

And they are themselves under scrutiny. Since they may not have had sufficient clearances to do this work, it is in their interest to downplay any expectations or warnings of additional classified material scattered around Biden’s home or office.

Concern over the use of lawyers has only grown with time. Biden not only continued to have his lawyers search after the first discovery, but did so for months through subsequent discoveries.

After finding highly classified material in Biden’s garage Dec. 20, private counsel — not the FBI — found another document in an adjacent room Jan 11. Sauber found more classified documents the next day.

Those last two findings followed White House assurances that the “thorough” search was “completed.” It obviously wasn’t thorough enough.

They raised another question. It would seem unlikely a document with a proper classified cover could be missed. The folder has thick red or yellow borders running around the edges and large black classifications like “TOP SECRET” emblazoned across the top. If that was missed, the earlier searches were clearly negligent.

Alternatively, and more concerning, the internal documents might have been removed from the folders and stored without cover. That would indicate someone removed and reviewed them — an act showing knowledge of the classified status. If they were removed at Biden’s residence, he would be the chief suspect in such use.

It would utterly destroy the “inadvertence” defense.

Jonathan Turley is an attorney and professor at George Washington University Law School.

198 thoughts on “All The President’s Men: Biden’s Use of Lawyers Raises Additional Concerns Over Handling Classified Material”

  1. Has the FBI tested the classified documents for the fingerprints and DNA of Joe Biden, Hunter Biden, James Biden and Dr. Jill Biden?

  2. President Trump gets the heavy handed home invasion, while Biden gets lawyers.

    Those classified documents Biden hid from everyone, including the National Archives, have been there since 2017.  He absconded with those documents as Vice President, without the authority to possess or declassify them.

    Trump keeping documents in a secured room locked with an FBI-requested padlock, at a heavily guarded private residence is “irresponsible,” but Biden keeping documents he wasn’t authorized to possess, in totally unsecure areas like a university office and his home garage, is okay.

    Too bad the angry National Archive librarian didn’t get a whiff of this back in 2017.

    The thousands of classified emails Hillary kept on her illegal unsecure home computer were hacked by the ChiComs.

    The FBI never raided her home.

    Clinton operative Sandy Berger stole classified documents from the national archives and destroyed evidence.  He got off.

    Biden’s transgression was done with the intent to hide the documentation of his criminal acts with Ukraine and the ChiComs.

  3. “All The President’s Men: Biden’s Use of Lawyers Raises Additional Concerns Over Handling Classified Material”

    That’s because lawyers are the most-corrupted and corruptible of all professionals. It’s easier to hire a lawyer to say or do whatever you want them to say or do than it is to find an engineer, accountant, or physician without any professional scruples. That which is a requisite in other professions is rewarded by its absence in the practice of law.

    1. Jonathan,

      From: OPINION Published January 16, 2023 4:05pm EST
      Why Biden’s documents mess could be one of the biggest political scandals in American history
      America’s Justice Department has become politicized and the Biden documents scandal begs the question, what did Merrick Garland know?

      Former Dir. of National Intelligence John Ratcliffe is full of himself. He’s lying.
      [See FOX Ratcliffe Interview: ]

      He claims that there are Tens of Thousands of Document that are out there,
      and there is “No Way” possible to track them.

      WRONG, the moment you login to your Computer, you Sign for the Information going in & out of it.
      Your Digital Foot Print. When you login into your Email Account, you Sign for the content going in & out of it.

      Today all Documents are created with a computer word processor, the Document can be Obfuscated and Encrypted, then transmitted.
      The Document is then decrypted by the Recipient. In the D.C. Complex these Communiqué are funneled through the Crystal City Data Center (Recorded).

      Knowledge Forensics:
      Look most of us have run a Virus Scan program on our Computer. The Scan may take some time but it can scan 100,000 Files (Documents) in Hours. It can do 1,000,00 Files in a Day (Overnight).
      Finder, Windows Finder can scan a string of terms in an Hour.

      With the current Knowledge Forensic Software tuned to scan Databases and model the resulting Data,
      100,000,000 Files can be search by Lunch time.

      Who is this Guy fooling.
      A respectable Operator won’t do it because He doesn’t have authorization to do it.
      It doesn’t mean he can’t do it (Seth did and it got him killed).

      The Government has Departments that do this [CISA & DNI], The question is: Will they be given Authorization to do the Forensic Analysts?

      1. @Anonymous err. Digital Fingerprints.

        You really don’t know much about Data and data footprints.
        Nor the intersection between the data and analog (print) world.

        Nor what sort of audit controls are in place.

        There’s more, but you get the idea.

        1. Only tried to make it simple to understand, but if you need more try the SANS Institute. (Sounds like you don’t need to) Jon’s Blog is not for Framework Lessons.

          The Government spends Billions on I.T., the ability to track Documents better be part of that or we’re not getting our money’s worth.

          How much does the government spend on technology?

          United States federal government budget has set out nearly 58.44 billion dollars for information technology in civilian federal agencies in 2022. The budget statistics for 2022 exclude the portion of the budget assigned to the Department of Defense and other secret IT spending.

          Cyber security spending is one of the most critical aspects of the US federal government’s IT budget. In 2021, more than 18.78 billion dollars will be spent on cyber security. Given the sensitive nature of their job, the Departments of Defense and Homeland Security have the highest cyber security budgets of all departments.

          PDF Excerpt:

          Table 12–1.
          (in millions of dollars)

          Agency FY 2022 Percent of Total
          Department of Veterans Affairs $8,495 14.5%
          Department of Homeland Security $8,150 13.9%
          Department of Health and Human Services $6,956 11.9%
          Department of the Treasury $5,967 10.2%
          Department of Transportation $3,694 6.3%
          Department of Justice $3,475 5.9%
          Department of Energy $3,245 5.6%
          Department of Agriculture $2,762 4.7%
          * Department of State $2,756 4.7%
          Department of Commerce $2,598 4.4%
          Social Security Administration $2,157 3.7%
          National Aeronautics and Space Administration $2,145 3.7%
          Department of the Interior $1,502 2.6%
          Department of Education $982 1.7%
          Department of Labor $819 1.4%
          * General Services Administration $702 1.2%
          Department of Housing and Urban Development $437 0.7%
          Environmental Protection Agency $370 0.6%
          U.S. Army Corps of Engineers $269 0.5%
          U.S. Agency for International Development $263 0.4%
          National Science Foundation $165 0.3%
          Nuclear Regulatory Commission 152 0.3%
          Office of Personnel Management $141 0.2%
          * National Archives and Records Administration $127 0.2%
          Small Business Administration $109 0.2%
          Total ………………….. $58,439 100.0%

          See PDF:

    2. Digital/Data Forensics:

      CISA Cyber Defense Forensics Analyst

      Digital Forensics:
      Collects, processes, preserves, analyzes, and presents computer-related evidence in support of network vulnerability mitigation and/or criminal, fraud, counterintelligence, or law enforcement investigations.

  4. The classfication system is scarier than I imagined. In an interview on CBS’s Sunday Morning on October 22, 2022, this exchange is reported:
    “CBS News national security correspondent David Martin asked John Fitzpatrick, who managed the flow of classified documents in both the Obama and Trump White Houses, ‘Do you have any estimate of how many classified documents there are?’ ‘That’s really unknowable,’ he replied. Fitzpatrick said the last reliable count was taken when most classified documents existed only on paper. ‘They were in the tens of millions of documents a year,’ he said. In the same article, National Intelligence Director Avril Haines is quoted as writing in 2022: “Deficiencies in the current classification system undermine our national security,” by making it difficult to share information with allies and the public.”
    So it seems that our classification system may be doing more harm than good. Ominously, we don’t even know what is and is not classified.

    1. Tens of Millions documents a year. I believe that many documents get classified solely to exempt them from FOIA requests.

      I worked for a government agency for 35 years. No, I did not handle any classified documents. But I will say this. Starting with the Obama administration and continuing on to this day, there is a noticeable shift away from transparency across all agencies. The White-house has also become less transparent over time.

      Prior to the Obama administration, white staff salaries were posted on-line along with all other government agency staff salaries. Obama ended that.

  5. Who’s to say that Biden’s aids didn’t just destroy or hide anything truly damning?

    When do we trust someone guilty of a crime to gather the evidence against them? Same with Hillary Clinton.

    I didn’t have a problem with government officials with clearance reviewing the documents in Trump’s securely locked storage area; I had a problem with armed agents raiding his property when they knew Trump was away, and their gathering all boxes that were anywhere near one single document marked classified, despite his assurances that he had declassified all the documents as President. They abused their authority to release pics of his vanity magazines, for example.

    Justice isn’t blind. There is a tiered justice system; one for highly placed Democrat patricians, and one for the Republican plebeians.

  6. So Jonathan, the FBI always acts on the behalf of the government? Ok, sure. The raids on Trump’s place, Roger Stone, the pro-lifer who apparently didn’t follow all the rules at an abortion clinic, the Project Veritas raid to recover a Biden family diary are just some of the more wonderful things the FBI has done recently. And the ass hat in charge of the FBI is currently over in Davos hobnobbing with the world’s elitists. This agency has lost nearly ALL credibility with half of America. Trust me, this is a BIG DEAL!

  7. OT

    Exercise Helps Blunt the Effects of Covid-19, Study Suggests

    “Exercise is as effective as many of the drugs that we use and has no side effects,” says Jordan Metzl, a sports medicine physician in New York City who wasn’t involved with the study. “We want to get people taking it every day.”

    based on the following study published in December:

    Young DR, Sallis JF, Baecker A, Cohen DA, Nau CL, Smith GN, Sallis RE. Associations of Physical Inactivity and COVID-19 Outcomes Among Subgroups. Am J Prev Med. 2022 Dec 10:S0749-3797(22)00526-8. doi: 10.1016/j.amepre.2022.10.007.

    why does physical activity reduce the adverse outcomes of COVID? Physical activity done on a regular basis reduces the manufacturing of immune cells by bone marrow and hence lesser production of inflammatory cytokines.

    No matter your age, physical activity is the way to go. There is a man in his 80s at my gym, with rheumatoid arthritis, has had one hip replacement surgery, another scheduled next week. He puts most young men to shame. He shows at the gym at 3:30 am every weekday, and goes at it. You should too.

    1. Estovir,
      Some of us noted the lack of discussion coming from the WHO, the CDC, Fauci, about exercise, eating better, fresh air and all those other healthy things one can do to just improve your life from a health stand point.
      Nope! It was, lockdowns! Masks! Dont go outside! Close the parks! Shut down the gyms! AND GET THE JAB!!

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