BY ANDREW C. MCCARTHY
With yet more classified documents seized during a long-overdue search by the FBI of the president’s Wilmington, Del., home, President Biden’s apologists are even more stridently portraying him as a cooperative public servant who “self-reported” his wrongdoing — as compared to his predecessor, who fought government efforts to acquire records he retained for well over a year.
Put aside that this is largely beside the point, the main issue being Biden’s serial violations of the federal criminal law that controls classified intelligence, not how supposedly helpful he has been to investigators. The fact is, he did not self-report — certainly not in the manner he suggests.
To “self-report” a crime, a person needs to report it to law enforcement authorities. Biden and his aides absolutely did not do that. Moreover, a close look at the timeline elucidates that the White House hoped this issue would slip quietly into a black hole, with no publicity and no criminal investigation.
On Nov. 2, 2022, the first batch of classified documents — some of which were marked “TS/SCI” (i.e., top secret, sensitive compartmented information), the classification level applied to the government’s most sensitive intelligence — were found by Biden’s private lawyers at the Penn Biden Center in Washington, in an office the president used as a private citizen after his term as Obama administration vice president ended.
This was indicative of several felony offenses of federal law. First, the Penn Biden Center did not open until February 2018. Biden obviously took the documents when he left the Obama White House in January 2017, so they had to have been illegally retained at some other unauthorized location for 13 months — meaning they had to have been illegally transported at least twice. Second, Biden directed his Penn Biden Center office to be packed up by his private lawyers, who did not have security clearances (and by the way, even if they had them, that would not necessarily mean they’d be authorized to review TS/SCI documents). Causing national defense information to be exposed to unauthorized persons is also a crime.
What happened next is critical: The Biden private attorney who took the lead on the first batch of documents is Patrick Moore. Moore did not report his discovery of highly classified documents retained in an unlawful place to law-enforcement — i.e., to the FBI or the Department of Justice (DOJ). He reported them to the Biden White House.
We do not know who at the White House participated in the deliberations over what to do about the classified documents discovery. What we know is that the White House did not report the discovery to law enforcement. Instead, it reported the discovery to the National Archives and Records Administration (NARA), an executive agency (i.e., it reports to the president) that is essentially a records repository, not a law enforcement agency.
Moreover, NARA’s leadership, under acting archivist Debra Steidel Wall, has worked closely with the Biden administration. When former President Trump tried to assert executive privilege over government records he had retained at Mar-a-Lago, it was up to Biden — under the Presidential Records Act — to decide whether to support that claim. Politically, though, Biden did not want to be seen as participating in an investigation of his rival. To help him out of that pickle, Wall issued an edict rejecting Trump’s privilege claim, as if she had made the decision about a presidential privilege that only Biden had legal authority to make.
More recently, when House Republicans demanded information from NARA about Biden’s mishandling of classified documents, NARA refused to cooperate. Provision of its own records to Congress, the agency claimed, could interfere with the special counsel’s probe, so it must be left to the Justice Department to decide on disclosure matters. This is exactly the stonewall position the Biden White House wants executive agencies to take.
In alerting NARA about the documents found on Nov. 2, Biden was not reporting his likely criminal offenses. At best, the Biden White House was letting the records repository know that there was a batch of Obama-era records that needed to be returned to government files. We don’t even know if the White House told NARA that some of the records were classified. In any event, the White House arranged for representatives of NARA officials to take the documents.
So, who reported the matter to law enforcement? That was done by the office of NARA’s inspector general, Dr. Brett M. Baker. The IG is not an ordinary executive official. Rather, it is a watchdog position, created by Congress to keep the agency on the straight and narrow by conducting internal investigations and reporting misconduct to Congress. Most executive agencies have IG offices — and Baker has worked in several of them.
The NARA IG’s office would have recognized that, if classified information was included in the Biden documents, then there were potential crimes and the Justice Department would have to be notified — just as NARA notified the DOJ when it found classified information in boxes of records that Trump returned to NARA about a year ago.
Biden did not report his misconduct to law-enforcement or to the public. Furthermore, there is reason to believe he intended for the public never to know. The public learned about Biden’s illegal retention of classified intelligence because CBS News — not Biden — reported it on Jan. 9. Only then did the White House and the president confess that the CBS report was true.
But here’s the thing: Prior to Jan. 9, there had been a second discovery of illegally retained classified documents: the ones found in Biden’s Wilmington garage on Dec. 20. CBS mustn’t have known about that one because it wasn’t mentioned in the Jan. 9 report. Clearly, though, the Biden White House knew about it — Biden’s private lawyers found the documents; by then, thanks to the NARA-IG the Justice Department had opened an investigation, so the Biden lawyers quietly told the DOJ, which quietly sent the FBI to Biden’s home to retrieve the garage documents.
Yet, when the White House conceded on Jan. 9 that Biden had retained documents, it concealed the Dec. 20 garage documents — i.e., it confirmed only what CBS had reported about the Nov. 2 Penn Biden Center documents.
Obviously, the White House hoped that no one would find out about the second discovery in the Wilmington garage. But then CBS’s Jan. 9 report was quickly followed by press reports about the documents found in the garage, as well as yet a third set of classified documents found in Biden’s Wilmington home (in his den) on Jan. 12. At that point, the cat was out of the bag, and there were so many violations that Attorney General Merrick Garland had no choice but to appoint a special counsel to conduct a criminal investigation.
Biden did not self-report to law enforcement. And Biden has not been transparent with the public. The president hoped to bury the whole embarrassing story. Once it emerged, he did what Washington politicians do: He said as little as he thought he could get away with, gauged by what the news media had uncovered, and he pretended that these grudging, mounting concessions showed self-reporting and transparency. They didn’t.
Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, a Fox News contributor and the author of several books, including “Willful Blindness: A Memoir of the Jihad.” Follow him on Twitter @AndrewCMcCarthy.