How many classified documents will eventually be found at Joe Biden’s house and other locations? We may never know the actual number, because the FBI and the newly appointed special counsel continue to allow the search to be conducted by … Joe Biden.
This weekend, yet another cache of classified material had been found at Biden’s Wilmington house. This followed on a White House claim that the entire residence had been searched and nothing more had been found. If this kind of mishandling and failed searches involved anyone other than a powerful politician, that alone would have triggered an FBI raid. In fact, a raid would have been the first step rather than a last option.
Let’s review a couple of relatively recent cases. Remember Reality Winner? The former Air Force enlistee went to work for a contractor to the intel community and discovered something that offended her. She took one classified document and sent it to The Intercept, which bungled the leak so badly that investigators almost immediately knew who sent it. What happened next? Emphasis mine:
She anonymously mailed a copy of a single document to the investigative news organization the Intercept. But despite that outlet’s reputation for taking top-secret information and turning it into news stories, its staffers didn’t take all the precautions that might have protected their source. Then, when a fleet of FBI agents showed up at her home, Winner didn’t insist on first consulting a lawyer.
Did the FBI ask Winner first to inventory any documents she might have? Allow her to turn over any more documents she might have “inadvertently” taken home? Of course not — they sent a “fleet” of FBI agents, in the words of the Washington Post. And why? Because a crime had been committed. And Winner spent years in prison for it, too — serving almost three years of a 63-month sentence.
Winner isn’t exactly the most sympathetic victim-example of FBI raids, admittedly. What about Thomas Drake? When he worked as a senior executive at the National Security Agency, Drake wanted to blow the whistle on a billion-dollar boondoggle. Unlike Winner, Drake spent years attempting to use the proper channels to draw attention to the issue, until finally leaking the issue to a reporter. How did that work out for Drake? Once again, emphasis mine:
Whistleblower Thomas Drake, a former NSA senior executive, tried to go by the book when he attempted to sound the alarm about a failed project at the agency that was costing American taxpayers more than $1 billion. Drake first complained to his superiors. He then privately informed the intelligence committees on Capitol Hill. After four years of reporting through proper channels, Drake anonymously contacted a Baltimore Sun reporter and became an unnamed source for her articles about mismanagement at the NSA.
In 2007, the FBI raided Drake’s home and, three years later, a grand jury indicted him under the Espionage Act.
In this case, it’s even debatable whether a violation of the Espionage Act had been committed. The predicate for this raid and grand jury indictment was still that Drake had committed an unauthorized exposure of classified material, even though he had tried everything else to draw attention to the wasteful spending and effort at the NSA. The Department of Justice eventually dropped all charges related to the Espionage Act and Drake pled to a misdemeanor after several years of prosecutorial hell.
Now let’s take a look at how justice — and Justice — works when it involves people like Joe Biden, Donald Trump, and Hillary Clinton. Especially Hillary Clinton, as we’ll see in a moment.
The cases of Biden and Trump have a number of similarities, some differences, but have one thing in common: they violated the law by removing and personally retaining classified information. Furthermore, the FBI and DoJ eventually became aware of both situations, and waited months in both cases to send the aforementioned “fleet” of agents. They eventually did with Trump, but not before spending months allowing him to self-identity and inventory the documents while negotiating their classification status. In both cases, the documents were stored under security conditions far below that needed by law for the classified information they contained.
Trump’s defenders point out that Trump had declassifying authority as president, while Biden took his documents as VP. That’s true, but a president has to take specific and explicit action to declassify the material while in office. Trump’s lawyers have not shown any such action. Plus, vice presidents apparently also have plenary access and classification authority, but even if they didn’t, Biden is president now. That means Biden could declassify every document found in Wilmington and Penn Center, a point that some appear not to recognize.
So why doesn’t he? That still wouldn’t negate the crime, however. The documents contained classified material when Biden and Trump removed them and that continued to be classified throughout their improper storage and presumed use. That put them at risk for unauthorized access in both situations, which is the reason that unauthorized retention and use are crimes, and why the FBI shows up when they find out about it.
And that brings us to the queen of this double standard — Hillary Clinton. Clinton set up her unauthorized and badly secured e-mail system as soon as she became Secretary of State expressly to obstruct Congress, which had legitimate oversight authority over the State Department. Clinton transmitted classified information through her home-brew e-mail system, had the State Department mislead courts about her e-mail activities, and lied continuously about the system when it got exposed. And Clinton never had plenary authority to declassify material that didn’t originate at State.
Did the FBI send a “fleet” of agents to seize the servers? Nope! They allowed Clinton and her attorneys to casually delete half of the over 65,000 e-mails on the system and resisted giving them access to the server for months. Instead, they gave the FBI a mound of printouts to sift through until finally allowing them access to the server and other electronic devices, which had been “wiped … with a cloth.”
If someone named Hillary Drake or Joe Winner had done that, they would have faced a series of Espionage Act and obstruction indictments. The FBI would not just raid their homes and offices, the DoJ would seize all of their electronic devices as well and hold them indefinitely. Prosecutors would almost certainly get a massive indictment from a grand jury in an attempt to intimidate their target into accepting a plea deal rather than fighting the charges.
Clinton instead got credit from FBI director James Comey for lacking “intent” and walked away unscathed. And while plenty of people have lots to say about double standards being applied to Trump — not without some merit, especially in media coverage — he’s also benefitted to some degree from a double standard applied by the DoJ to celebrity politicians ever since Sandy Berger smuggled Bill Clinton’s secrets out in his sock.
Everyone else who works with classified material gets routinely lectured on the consequences of violating the Espionage Act. And anyone else who “took their work home” without authorization and proper security would get the Fleet of Agents treatment. That’s the true double standard, and Biden’s continued and incompetent searches at his home — conducted by lawyers without clearance to access such material — keep rubbing our faces in it.