Given the opportunity to search President Joe Biden’s office and residences, the Department of Justice declined to do so, The Wall Street Journal reports. Instead, it allowed potentially uncleared and unnamed private counsel to search for classified material after the discovery of the highly classified documents in the Penn Biden Center office. It was a decision that could benefit Biden greatly, but at a considerable cost to the department itself.
If true, the decision raises additional questions over the independence of top law enforcement personnel. This follows a litany of controversies involving both Donald Trump and Biden where the FBI and DOJ have been accused of political bias and unequal treatment. While the FBI recently denounced critics as “conspiracy theorists,” the record of inexplicable decisions continues to grow by the day.
There is no plausible reason why, given the chance, the Justice Department would not want to conduct a national security search itself. After Nov. 2, the Justice Department was aware that material at the top secret or higher levels was discovered in a closet in the Penn Biden Center. It was also aware that the material may have been moved over the course of six years and that other material could be in other unsecured locations. Nevertheless, it reportedly opted to allow uncleared attorneys to search for additional classified material under a type of “look but please don’t read” edict.
As someone who has worked with classified evidence at the TS/SCI level since the Reagan administration, the decision is breathtaking. It effectively replaced well-established national security protocols with an honor system to be followed by persons unknown.
The decision undermines the credibility of the Justice Department in both the Biden and Trump investigations. The department is threatening criminal charges over the mishandling of classified material but opted for a grossly negligent approach itself in the search for additional classified documents. It just rolled the dice and lost. Additional documents were found by the uncleared lawyers. However, the Justice Department continued to defer to Biden’s counsel like a mere pedestrian at a potential crime scene.
At Mar-a-Lago, the FBI also allowed documents to be gathered and secured by staff as negotiations continued over their return. However, while many of us have criticized the possession of the documents, Trump was contesting the claim that the documents were classified and that he was not allowed to possess them.
The latest on President Biden’s classified docs scandal
The Trump case has grown more difficult not only due to the alleged conduct of Biden but now of the Justice Department itself. It is not clear that Trump ever offered to allow the FBI to conduct its own search of the entire residence. (According to Trump staff, the FBI was given access to documents in the storage room.) If so, it would have been equally negligent in refusing the opportunity. Ultimately, the FBI used a warrant to search the residence and seize not just classified material but a huge amount of documents found with the classified material. It also took pictures of what was found during the search.
By allowing the Biden lawyers to conduct the two months of searches, the DOJ minimized the threat to the president in a number of ways.
First, there were no photographs of the discoveries or where these documents were found. While the FBI was accused of staging a photo to embarrass Trump, it guaranteed that Biden would not face any photos at all.
Second, it guaranteed that there would be no independent official record of the discoveries. One of the key questions was whether classified markings or the obvious color-bordered folders were apparent at these locations in the closet, the garage, or the library. We now must rely on Biden’s own counsel to answer such questions of whether documents were removed from classification folders or mixed with other documents. Indeed, since these private lawyers were used, a claim could now be made that the lawyers might have moved documents — trudging back and forth over the documents and muddling up the “chain of custody.”
Finally, by signing off on potentially uncleared counsel to do the search, the Justice Department minimized Biden’s own conduct. If this was such a serious violation, the Justice Department did not appear particularly concerned or motivated to correct it. It allowed private counsel to set the parameters of their search and will rely on their account of what was found and where.
It is a particularly glaring anomaly after the Justice Department litigated its opposition to allow a court special master to review seized material from Trump. It argued that the use of this retired judge was an unspeakable deprivation of its authority, but it appears entirely comfortable with using unknown parties to seize material.
The news report indicates that one of the reasons for allowing Biden to use his own lawyers was to “preserve the ability to take a tougher line, including executing a future search warrant, if negotiations ever turned hostile.” That rationale is equally baffling. You usually want to take a “tougher line” to force a party to give you something like access to the material. However, the Justice Department was reportedly offered that access. It was turning down that access. It is akin to saying that I could have used my keys to enter the home but that would have meant that I could not later force the residents to open the door. If it conducted the search, it could record the search, seize the documents, and take any position it wanted after the fact.
None of this would help make the case against Biden or others on the unlawful possession and handling of classified material. However, it does strengthen the case for the House committee now being assembled to investigate the Justice Department and the FBI.
Jonathan Turley is an attorney and a professor at George Washington University Law School.