An investigation into classified records from the Obama administration that President Joe Biden held for years at his private Washington office could temper attacks against former President Donald Trump as federal authorities weigh criminal charges over the former president’s handling of secret files.
The discovery has raised questions over whether Biden’s attorneys or federal authorities sought to protect the incumbent president with the timing of the disclosure, which occurred months after the files were discovered in the lead-up to the midterm elections. Federal officeholders must return classified materials when their tenures end.
“Why has this information been revealed now and not earlier? That should be part of the investigation: whether the disclosure and the timing of the disclosure was in any way designed to achieve partisan advantage,” retired Harvard University law professor Alan Dershowitz told the Washington Examiner. “That’s the question.”
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The reports have fueled calls for congressional inquiries into Biden’s handling of the documents, as well as the circumstances that led federal authorities to seize classified files from Trump’s administration stored at his Mar-a-Lago resort in a high-profile raid last year.
Yet Dershowitz said the revelations are not a clear-cut political gift to Trump, who refused to turn over to the National Archives secret files in his possession for months. Biden’s allies have hammered the point that the president’s team cooperated with law enforcement once the files were discovered.
“It’s a knife that cuts both ways,” Dershowitz said. “On the one hand, it helps Trump that Biden had classified materials in a private area, and it probably hurts Trump that the Biden people were so cooperative and came forward and revealed it and didn’t wait to be accused.”
The White House has said it is cooperating with federal investigators, though on Tuesday, Biden did not respond to shouted questions about why classified documents were in his possession after leaving office but did elaborate on the matter at a press conference with his Mexican and Canadian counterparts.
“I take classified documents or classified information seriously,” he told reporters in Mexico City after the 10th North American Leaders’ Summit. He said he was “surprised” the documents were found and his team cooperated swiftly.
“They immediately call the [National Archives] immediately,” Biden added. “We’re cooperating fully, cooperating fully with the review, which I hope will be finished soon.”
U.S. intelligence memos and briefing materials on Ukraine, Iran, and the United Kingdom were among the classified documents from the Obama administration found in Biden’s private office, CNN reported. Sources told the outlet that Biden and his White House legal team did not know the contents of the files.
Biden’s personal attorneys discovered the documents on Nov. 2 and notified the National Archives that day, according to a statement from Richard Sauber, special counsel to the president. The National Archives took possession of the files the following morning.
The documents, reported by CBS News, “were not the subject of any previous request or inquiry by the Archives,” Sauber said in the statement. “Since that discovery, the President’s personal attorneys have cooperated with the Archives and the Department of Justice in a process to ensure that any Obama-Biden Administration records are appropriately in the possession of the Archives.”
Trump resisted returning classified files at Mar-a-Lago, with the case looming now over his prospects for another White House bid, his campaign announcement in November prompting Attorney General Merrick Garland to appoint a special counsel to oversee the investigation to avoid the appearance of a conflict of interest.
Documents recovered by the FBI from Trump’s Florida home and private resort included highly sensitive intelligence regarding Iran and China, according to reports.
Biden’s critics are eyeing the coverage skeptically.
“One would hope this discovery be treated with the same gravity as the papers in Trump’s home or Watergate,” presidential historian Craig Shirley said. “But we know the reality of the matter. It will be swept under the rug by the liberal media.”
Republicans erupted in the wake of the Biden disclosure this week, accusing the Justice Department of wielding its political power to damage Trump when it ordered classified documents in his possession seized in a federal raid.
In a radio interview, former Vice President Mike Pence accused Biden’s Justice Department of using a “double standard” in its handling of the case.
The files, some marked “sensitive compartmented information,” indicating the highest level of government classification, were held at the Penn Biden Center for Diplomacy and Global Engagement. Biden was vice president between 2009 to 2017 under Obama.
House Intelligence Committee Chairman Mike Turner (R-OH) called on Biden’s director of national intelligence, Avril Haines, to conduct a damage assessment.
In a statement Tuesday, Senate Intelligence Committee Chairman Mark Warner (D-VA) asked Congress to be briefed “on what happened both at Mar-a-Lago and at the Biden office as part of our constitutional oversight obligations.” Warner and Vice Chairman Marco Rubio (R-FL) made a similar request after federal authorities seized documents from Trump’s Mar-a-Lago estate.
A biographer of former Presidents Franklin Delano Roosevelt and Ronald Reagan, Shirley said the outcome “becomes one more item for people to pass judgment on Biden.”
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While the discovery of Biden’s files could muddy the attacks by Democrats against Trump, Dershowitz said the hurdle to indict a president or presidential candidate over their mishandling of classified records must meet a high bar. Pending an investigation, “it doesn’t necessarily reflect that [Biden] was making a deliberate decision,” he said.
“You have to have a smoking gun. The intention has to be clear; the criminality has to be clear,” Dershowitz added. “I don’t see it in either of those cases.”
