Below is my column in the New York Post on the latest developments in the Biden classified document investigation. The latest search occurred on the first day at the office for Robert Hur as Special Counsel. He may find that any potential criminal case has already been made more difficult by decisions by the FBI.
Here is the column:
The FBI issued the “all clear” on its latest search of one of President Biden’s residences. The announcement came with the first day of special counsel Robert Hur on the job at the Justice Department.
Hur may find that the Biden legal team feels that “all clear” extends beyond the latest search. It could be challenging to make a criminal case after how the investigation has been handled.
At every stage, the FBI has adopted an approach that would compromise or complicate any criminal charge.
The FBI left the home untouched for over three months after classified documents were found in Biden’s former office in DC. While it was recently learned that the FBI did go to that office a couple weeks later, they reportedly elected to have personal counsel for the president conduct searches on the residences. Biden then spent weeks traveling to these residences after the FBI waited to search the premises.
The private searches clearly went through these documents and moved (and potentially organized) material. Despite being given the opportunity to conduct and record the initial searches, the FBI will now have to rely on the accounts of private counsel on how these documents were originally left, including any visible classification markings.
For example, to go through the papers, counsel had to handle them, sort them, and stack or box them. That means that the original conditions are lost in determining, for example, if anyone in the vicinity could have seen a telltale bordered classified jacket or whether a classified document was partially or fully outside of a jacket.
The FBI allowed uncleared private counsel to tread all over these scenes, creating a nightmare of chain of custody.
It then waited weeks to send its own agents to places like Rehoboth Beach as counsel and the Bidens frequented the property.
It is also not clear how the FBI conducted these searches. Reports recently indicated that Biden included classified information in notebooks that were seized in earlier searches. If true, that is a nightmare for investigators because it would require agents to do more than simply look for classified documents with markings at the beginning of paragraphs and tops of pages. They would have to actually read material to determine if Biden incorporated classified material.
In fairness to the FBI, the same hands-off approach was initially used with Trump as the FBI allowed for material to be collected and stored with additional security at Mar-a-Lago.
There are two differences. First, Trump never denied having such material. He insisted that he was allowed to have the files because he considered them unclassified. Second, while the Trump team insists that the FBI was given access to the documents, Trump resisted efforts to turn over all of the documents. Indeed, the FBI has raised a pattern of obstruction and false statements.
With Biden, the FBI did not know where documents might be located. The findings overlap with residential and office space used by Biden over the years. Moreover, they were reportedly told that they could search and seize any documents. They did not use that opportunity to search all of these locations, even after counsel erroneously stated that no more classified material was present at these locations.
The FBI is moving no more aggressively with other possible areas containing classified material. The FBI still has not reportedly searched the massive trove of Biden documents being stored at the University of Delaware. Reports indicate that Biden removed classified material as senator and these records cover that period. Looking for a few documents in Rehoboth Beach and not the university (roughly 80 miles away) with a truckload of documents is like driving past the ocean to go fishing in a wading pool.
The result for Hur is a case that is messier than Biden’s garage. It is hard to see how this investigation would yield a solid criminal case absent confirmation that Biden worked off clearly classified material. If so, he showed both intent and knowledge of unlawful possession during prior years. It would also make his categorical denials of any knowledge appear more sinister and incriminating.
Either way, none of this suggests “transparency,” as Biden likes to boast. The investigation has proceeded with a small fraction of the information leaked or released against Trump. Rep. James Comer (R-Ky.) also says that the National Archives were blocked from putting out a press release about the case — either by the Department of Justice or the White House. Combined with the fact that nothing was made public until after the midterms, it shows that Biden’s team wanted to keep this quiet.
In the end, both Biden and Trump come out looking bad but that is not nearly as bad a thing for Trump.
Jonathan Turley is an attorney and a professor at George Washington University Law School.