But inadvertent misplacement is not a defense to felony mishandling of national defense intelligence by an official who has been entrusted with it.
The prosecutor needs only to prove that the accused was grossly negligent in, for example, removing the intelligence from its secure government location, retaining it in an unauthorized place, and allowing it to be exposed to persons who were not authorized to see it. It is thus peculiar to hear Biden apologists continue to repeat the “inadvertence” talking point. They’re not helping him.
Still, I have questions about exactly what the president’s surrogates mean when they say “classified documents were inadvertently misplaced.”
Note the passive voice. They sometimes seem to be saying that the documents somehow misplaced themselves. At best, they are implying that this was all the fault of a sloppy aide. Rest assured, though, that Biden himself had nothing to do with it. It’s a blame-shifting strategy: You’re to believe that it was not our notoriously error-prone leader who was inadvertently misplacing classified intelligence — i.e., exhibiting gross negligence.
This is implausible on the developing record. After all, documents were removed from government safekeeping at different times, when Biden was in different government jobs, and they were transported to different places — private offices, rooms within a private home, a private garage, etc. In all of this, there is only one common denominator: Joe Biden. His government jobs, his privileged access to classified documents, his private locations. How could it be that all the “inadvertent misplacement” always ends up with documents in Joe Biden’s personal possession? He seems exceedingly unlucky, no?
The latest on President Biden’s classified docs scandal
Then, of course, there is Biden’s possession of classified documents from his decades in the Senate, which turned up in Biden’s Wilmington home during last Friday’s search by the FBI. It’s not enough to say that the president had no business holding on to those documents for at least 14 years (Biden left the Senate to become vice president in 2009). The point is that he shouldn’t have been holding on to them for 14 seconds.
Senators and House members are legislators, not national security officials. Even if they sit on committees that deal with sensitive intelligence, that’s only a small part of their work. Their limited function is to oversee how the executive branch conducts security operations, not to execute such operations as if they were the president or the director of a government spy agency.
Consequently, the government does not set up SCIFs (secure compartmented information facilities) — secure locations for retaining and protecting classified documents — in the homes of lawmakers, as it does in the homes of top executive security officials who are on duty 24/7. If you are a senator who has a security clearance permitting you to review classified intelligence, you have to go to a SCIF on Capitol Hill.
When you get there, moreover, you are not allowed to bring your cellphone or other online electronic devices inside the SCIF. You must review the intelligence inside the SCIF. It is verboten to take notes (unless they are going to be left in the SCIF). Most importantly, you are prohibited from removing documents from the SCIF. Period.
As a senator, Biden should not have had any classified documents outside a SCIF. He should not have had any notes. Yet reports about the search indicate that agents seized both classified documents from Biden’s Senate tenure and notes. Since he was not supposed to have these in the first place, which “sloppy aide” could possibly be responsible for “inadvertently misplacing” them?
Finally, let’s talk about sloppy aides. It seems Biden’s apologists would have you believe that low-level aides were running around the Obama White House, passing around classified documents here, snatching up classified documents there, and indiscriminately strewing them in packing boxes during the chaos of the transition to the Trump administration.
That is not the way it works. Only government officials who have security clearances are permitted to handle classified information, that information may only be reviewed in places that are authorized for the purpose, and those officials — the vice president included — are dutybound to ensure that the information is properly secured.
Biden seems to be suggesting that sloppy aides packed classified documents in his belongings, and then sent them unsecured to multiple unauthorized locations that all just happen to be Biden’s own private locations. If this happened, these had to be either aides who have security clearances, or uncleared staffers to whom aides with security clearances unlawfully transmitted these documents, and who then shipped them to Biden — without his knowledge, we’re to believe.
If that is what Team Biden says happened, if that is what they are saying was what passed for security protocols in the Obama administration, then that is a scandalous allegation. It would call for intensive national security investigations of all Obama officials whose belongings were packed up and shipped out of the White House when the administration ended.
The media should be pressing Biden and his flacks to identify exactly which Obama administration staffers supposedly violated federal criminal laws that govern the handling of classified investigation.
For myself, though, I’m an Occam’s Razor kinda guy: The simplest explanation is the likely explanation. Ergo, I don’t think this was an Obama administration problem. I don’t think it was a sloppy aides problem. I think it was a Joe Biden problem — and no one who has watched Biden’s erratic half-century political career can be all that surprised.
Andrew C. McCarthy is a former federal prosecutor.