A few observations on Biden’s documents

We don’t know anything all that bad yet.
But there’s still a lot we don’t know. Let’s wait and see.

So far, I’ve seen very few people frame this story properly. The popular choices seem to be: it’s a nothingburger, or it’s just like Trump’s documents scandal. In my mind, the proper framing is that we don’t know how bad this is yet, but it’s being investigated, and before long we will know.

Obviously, there are major differences between Biden’s document problem and Trump’s. The main one is that Biden’s people immediately turned the documents in and seem to have cooperated with the investigation in every way. Probably Biden never would have been caught otherwise. Trump, on the other hand, has done everything he could to deny and obstruct, including having his lawyer sign a false statement of subpoena compliance affirming that all classified material had been turned over, when in fact it hadn’t been.

Here the facts-as-we-know-them so far: Something like 20-30 classified documents have been found in two locations: the office Biden used during the Trump administration at the Penn Biden Center for Diplomacy in D.C., and Biden’s home in Delaware. The Penn documents were found on November 2, and the ones at the Biden home on various days between December 2 and January 20. The original documents were found by Biden’s own people, and the most recent ones were found by an FBI search that Biden agreed to voluntarily. Assuming the FBI search was thorough, they’ve probably recovered all the documents now.

The response of Biden and his people suggests the mishandling of documents is due to innocent carelessness, but there’s still a lot we (and the special prosecutor) don’t know:

  • how the documents got there,
  • whether Biden himself mishandled the documents or people working for him did,
  • what’s in the documents,
  • whether the mishandling resulted in classified information leaking to enemies of the United States,
  • whether any pattern in the documents suggests that Biden kept them intentionally.

Nothing we know so far suggests that these questions have sinister answers, but we don’t know for sure yet. They should be investigated, and they are being investigated.

The general public has a poor understanding of the rules about handling classified documents and how violations are typically handled. (This became an issue during the Hillary Clinton email investigation, which I wrote about at length at the time. Everything I said then has held up pretty well.)

I’ll pass along my experience from working at a defense contractor and having a top-secret clearance back in the 80s and early 90s. First, the government and the contractors do take this stuff very seriously, but given that millions of people are handling millions of classified documents, violations are happening all the time. Most of them are simple and harmless, like somebody leaving a secret document in a desk drawer overnight rather than locking it up in a safe, like you’re supposed to do.

Not every violation is a federal case. I was never cited for a violation myself, but I heard about people who were. Typically, a careless violation would get you an unpleasant meeting with your boss and somebody from the security department, as well as a note in your file that would speak badly the next time you were considered for a promotion or a raise.

A series of careless violations might get you fired — nobody I knew personally ever was — but people would only be charged with a crime if they were intentionally stealing documents. (That’s why the apparent differences in the Trump and Biden situations matter.)

The Trump and Biden incidents may be linked politically, but they are not at all linked legally. Assuming the Biden investigation doesn’t turn up anything more than carelessness (which, I emphasize again, we don’t know yet) it would be completely reasonable if Trump gets charged with multiple crimes and Biden doesn’t.

Let me make an analogy: Suppose an object in my apartment turns out to have been taken in some burglary. I might have gotten this item innocently; maybe I bought it at a second-hand store. Or I might have some level of guilt; maybe I bought from somebody I knew was shady, or maybe I was involved in the burglary myself. Police should investigate and charge or not charge me accordingly.

Meanwhile, police in a different state find something from an unrelated burglary in somebody else’s home. They also will investigate and charge or not charge the other guy. But those charging decisions are not linked in any way.

That’s how it should be here. The two special prosecutors should do their jobs independently, and the decisions they make should depend on the facts they find in their own particular investigations, without reference to the other investigation. That’s what the rule of law demands, and what I will expect until I get some indication otherwise.

People who assume that this will not happen — say, that Trump can’t be charged now that Biden has an incident with a surface similarity — are implicitly buying Trump’s claim that the investigations into his possible crimes are fundamentally political. Personally, I don’t buy that claim, and I think that reporters and pundits who do base their analysis on such an assumption should say so openly.

There is one important sense in which the cases are not similarly politically: Biden is a politician, while Trump is the leader of a personality cult.

That’s why I can be so calm about a special prosecutor investigating Biden: If he did something wrong, he should face appropriate consequences. I’m fine with that. If the special prosecutor does does unexpectedly turn up something sinister, I’m sure Kamala Harris will be a fine president.

For a large number of Republicans, on the other hand, Trump is not just someone they voted for. He’s their lord and savior, and seeing him in jail would be an unimaginable horror.

Finally, the press coverage of Biden’s documents has been abysmal. In his “Breaking the News” blog (which I subscribe to, but I think you’ll be able to follow the link even if you don’t), James Fallows talks about a variety of recent framing issues, including the Biden documents.

But as a matter of journalistic practice, I think our colleagues need to recognize our enormous responsibility and “agency” about what becomes an issue or controversy. “Raises questions,” “suggests a narrative,” “creates obstacles”—these aren’t like tornados or wildfires, things that occur on their own and we just report on. They are judgments reporters and editors make, “frames” they choose to present. And can choose not to.

The whole article is worth a read.

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  • reverendsax  On January 23, 2023 at 9:31 am

    Even the better journalists are off-base: The NYTimes reports in a headline that Documents were “seized” from Biden’s home. I think the connotation of “seized” is more violent than “found” or “retrieved.” It implies that they were held by someone who didn’t want to give them up.

  • EFCL  On January 23, 2023 at 11:06 am

    Doug: Like you, I once had the alphabet soup of higher clearances. Some time after I left that assignment, I actually did find a classified document inadvertently mixed in with my other technical papers (all 8.5 x 11 white paper looks the same!) As you note, there’s a process to follow: I had to report the mishandling, I had to turn over the document to an appropriately cleared custodian, I had to write a report stating what happened, why, why it wouldn’t happen again, and including my assessment of the probability that the document had been disclosed beyond my office. In my case, turning over to the “appropriately cleared custodian” proved difficult, because the document was under special access that no one in my then-current facility had. But there was (and I assume still is) a process for handling all of that. As you note, the process starts with self-reporting and ends through close collaboration. Biden’s team appears to be doing all of the right things. Trump’s team apparently did none of them.

    In no case was the document ever my personal property. It was only in my possession.

    I have to say that I wasn’t upset in the least when my assignment changed from one that involved classified material to one that did not. I don’t miss those days at all.

    • weeklysift  On January 24, 2023 at 9:01 am

      Thanks for providing this example, which to me emphasizes the extent to which security is an honor system. If you’d just put the offending document in a shredder, maybe they’ve have done an audit eventually and raised difficult questions for you. But maybe not.

    • weeklysift  On January 24, 2023 at 9:06 am

      Another thing I think the general public doesn’t grasp about classified information is how boring most of it is. I remember reading a document about some new radar system. The overall design and theory was something you could read in the open literature. What was classified were the precise frequencies and power levels, which I couldn’t remember for more than five minutes, and never would have been tempted to bring up in casual conversation.

      • EFCL  On January 24, 2023 at 9:09 am

        That’s certainly true!

  • David Goldfarb  On January 23, 2023 at 11:49 am

    I’ve seen a tweet along the lines of,
    “Biden went 10 MPH over the speed limit because he wasn’t paying attention. Trump ran over a schoolchild while doing 100 MPH in a school zone because he was fleeing from the cops because he murdered a cop who was trying to arrest him for dealing meth.”

  • Abby  On January 24, 2023 at 4:08 pm

    And of course the whole matter of what becomes a “controversy” and what does not is at the heart of many of our problems today. This is especially the case since journalistic balance has come to mean that journalists feel required to give each “side” equal time and each side gets little feedback, so bogus claims are presented alongside valid ones in the name of balance.

    This is why it took so long for climate change to be widely accepted as fact, and why evolution still isn’t.

  • susanmbrewer  On January 26, 2023 at 1:09 am

    The first commenter — “seized” vs “retrieved” or “found” documents — highlights a trend that is bothering me more and more when I read about politics and current events generally. What are supposedly straight news articles, not op-eds, seem to be using these loaded words more and more frequently and I believe their use has a much bigger impact, probably unconsciously, than most people realize. It also reminds me of a HS journalism class many, many years ago where we were taught not just how to write straight news but also how to recognize (and avoid!) what I think the teacher called yellow journalism. What may be appropriate in a persuasive piece of writing is way out of line is a straightforward news article.


  • By Absurdly dangerous | The Weekly Sift on January 30, 2023 at 12:52 pm

    […] now Mike Pence’s similar issue threatens to turn it all into a farce. I stand by what I wrote last week, and extend the argument to cover Pence: While the Trump, Biden, and Pence situations have a […]

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