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Having watched all of the testimony of Special Counsel Robert Hur, which I’m sure will be well covered and written about, I really just want to focus on a few critical items that were repeatedly made unclear.
I have to note that I’m writing this with personal experience of having had a TS/SCR clearance during the 12 years that I worked for Defense Contractor Nortrop Grumman, so I have some experience with the proper handling of classified documents.
The point that I want to highlight is the fact that there were two different types of documents that Robert Hur was dealing with in the case of Joe Biden. One set of documents were standard classified items which were all individually marked — usually in the margins or with a cover sheet with a red outline — as “Classified.” Some of these documents were from Biden’s time as a U.S. Senator and some of them were from his time as Vice President.
Based on Hur’s testimony Biden was completely unaware that he still had possession in his office and homes of these documents. These documents were accidentally retained by his staff who had mistakenly failed to return them to the national archives when he completed his service in the Senate and the White House. These documents were not “willfully” retained, and once they were discovered by Biden lawyers they were immediately returned to the national archives.
Biden then invited the FBI to his home(s) to search for additional documents which they found in his office, closet and garage — and those were also returned. This situation is exactly like what had occurred with Mike Pence, and he too was cleared of all deliberate and intentional wrongdoing.
The bigger issue, is the second set of documents, the ones where Biden was recorded telling his ghostwriter “I’ve found the classified documents” in his home in 2017. Those were the documents that he “forgot” about and that was the primary issue that Hur was investigating.
The one person to really address the issue of the second set of documents — which were Joe Biden’s handwritten notes from his time as Vice President — was Rep. Zoe Lofgren.
As pointed out by Rep. Lofgren, the precedent established by the DOJ with former President Reagan — who also had personal notes that did contain classified material — was that such notes were considered the personal property of the President.
Similarly, Joe Biden’s personal notebooks were also considered his personal property and not government documents under the Presidential Records Act. Joe did refer to his notebooks as “classified documents” but that was actually a misnomer.
In the real world, classified documents are Marked as classified. When I worked at Northrop Grumman it was actually my responsibility to place the markings on the documents. I worked in the IT department operating four minivan-sized IBM laser printers capable of generating 10,000 pages of documents per minute. I was responsible for selecting which types of documents to print. Class “C” for Confidential, class “S” for Secret or class “U” for Unclassified. Before printing a new class we had to change a giant photographic negative. — which we called a “Flash” — which included the words, “Confidential”, “Secret” or “Unclassified” which would be automatically printed in the margins of every document as they were generated by the printer.
Every page of every document had to have a marking, and if the wrong “Flash” was in place and generated the wrong marking — all of those pages had to be destroyed.
Further, when documents of this type are re-classified or declassified at a later date the markings in the margins have to be *changed* -— usually crossed out — and then redacted, signed and dated by the agency which has performed this declassification.
We can see exactly this process by reviewing the notes which were written by James Comey and see that all of them were marked for classification and that later each that was declassified had those markings changed.
This is the normal process for handling classified documents.
That is not the process that applied to former VP Biden’s private hand-written notebooks. At no time were these notebooks MARKED AS CLASSIFIED. At no time were these documents tracked and logged by the government as classified material.
This was also addressed by Lawrence O’Donnell last night. (Starting at 4:37 in the broadcast)
O’Donnell: Republicans on the Committee kept trying to suggest that Robert Hur would have recommended criminal charges against President Biden, if Biden were just younger. It was Presiden Biden’s “elderly, faulty memory” that would make him hard to convict in a courtroom, but the truth of the Hur Report is that it does not at any point identify a single criminal act that could be prosecuted against any one at any age.
It did not identify a single thing the Joe Biden did that anyone has ever been prosecuted for.
And the only classified material that Joe Biden knew he possessed was exactly the same material that President Ronald Reagan kept when he left the Presidency and the Justice Dept. at that time believed that what President Reagan did was perfectly legal and they justified it.
President Ronald Reagan kept daily notes during his time in the White House and Joe Biden kept similar daily notes during his 8 years as Vice President. Those notes would inevitably contain, possibly, classified information.
And those notes were deliberately kept by Joe Biden following the legal precedent set by Ronald Reagan and the Justice Dept. when Ronald Reagan deliberately kept those same notes.
And so the simple facts of the Biden case [that] there was no criminal prosecution because there was absolutely nothing that was even close to a criminal act.
Rep. Ted Lieu made a strong case for the vast differences between Joe Biden’s handling of classified documents and Donald Trump’s.
Here’s another key moment where Rep. Jim Jordan suggests that Joe Biden had “8 Million Reasons” to retain “classified information” because he wanted to write a book. (And the advance for the book was $8 Million)
In this section where Jordan mentions that “Biden retained and shared classified material” what he’s talking about are Joe’s handwritten notes which were never marked classified. Hur does not correct him on this point.
What Jordan also doesn't mention is that the book Biden wrote was primarily about the death of his son Beau, writing that book is what he was doing during 2017. This is why when he was asked by Robert Hur about his retaining classified documents in the 2017-2018 time frame Biden thought about the death of his son.
Jordon also doesn't admit that there was no classified data in Biden’s book. So the argument that Biden needed to retain classified materials to share with his Ghostwriter is somewhat bogus. He wanted to share his personal notes and recollections with the writer to ensure the book’s accuracy. The classified portions were incidental to that goal, and as they were unmarked, they attempted to avoid them as best they could. Biden told his Ghostwriter while reading the notebooks — “Careful, This could be classified.” He wasn’t deliberately *trying* to share classified data — he was trying to avoid doing so.
Lastly, Jordan highlights that Biden’s Ghostwriter decided to delete his audio recordings of Biden when he found out that Hur was assigned as Special Counsel, and that is admittedly suspicious behavior — it is, however, not illegal. There was no subpoena for those recordings at that time, so destroying them would not be a crime. Again, though, what Jordan doesn’t mention is that all of the transcripts of those recordings were still retained and it is because of those transcripts that we know that at some point Joe Biden told him
“I found the classified docs (notebooks) downstairs.”
If the Ghostwriter had really wanted to destroy all the evidence that Biden had made this statement — he didn’t finish the job.
According to the transcripts Biden said when Hur asked him “what month” that Beau died he said “May 30...” and someone else said “2015.” To which Joe then asked “Was it in 2015?”
During 2015 Joe was Vice President. He didn’t really have room in his life to process the passing of his son, he didn’t really process that event until he left the White House and started writing about it in 2017. It’s not that shocking that he tended to think it happened in 2017, because that was when he finally allowed himself to go through the grieving process. That’s when he wrote the book.
As has been stated, Hur used this slip-up to attack Biden’s memory — but as Rep. Swalwell pointed out (in the earlier part of the O’Donnell video) in the transcripts Hur also referred to Biden’s recollection of the contents of his house as “Photographic.”
So is he a doddering forgetful old man or is his memory Photographic? Maybe, like most of us, he’s a bit of both.
There are portions of the transcript where Biden is correcting the members of Hur’s team on the facts when they make mistakes in their questions.
But none of that was included in Hur’s report.
So, although Hur tries to play it like he’s just “calling balls and strikes” and that he had no “partisan” goal or influence — his decision to claim that it was because Biden would seem like a “forgetful old man” is not really why he couldn’t prosecute.
He couldn’t prosecute because there was NO. CRIME.
This brings me to Rep. Adam Schiff’s scathing commentary on Hur’s report:
There were quite frankly, a lot of problems between Hur’s report and the actual transcripts of Biden’s interview.
I don’t know that Hur did what he did for political reasons, but the fact is that he did disparage Joe Biden while declining to prosecute him which clearly goes against DOJ guidelines.
This was the same mistake that James Comey made when declining to prosecute Hillary Clinton over her email server. There was no need for him to attack her as “reckless”. Perhaps Hur made the same decision as Comey, that he needed to kick the potential defendant as they walked out the door scott-free, but that — as Schiff makes clear — was the “wrong choice” no matter why that choice was made.
Let me wrap up by addressing some false points made by Sen Hawley.
Hawley: He never had the right to have them in the first place, unlike Trump — Trump is a former President. The Presidential Records Act covers him. With Trump’s it’s whether he should have retained them or not, but Biden he should have never had them.
Manu Raju addresses the point that Biden did cooperate while Trump didn’t — which is true. But it’s also true that the Vice President retains the exact same classification and declassification authority as the President. This is documented in several executive orders including #13526 which specifically covers Biden.
(gg) "Original classification authority" means an individual authorized in writing, either by the President, the Vice President, or by agency heads or other officials designated by the President, to classify information in the first instance.
The Vice President has the same authority as the President and we know this is the case because VP Dick Cheney used this exact authority to excuse telling Scooter Libby that Valerie Plame “worked for the CIA” and allowed him to unilaterally reveal classified information from the Iraq NIE to reporters such as Judith Miller.
In an interview about his recent hunting accident, Vice President Dick Cheney revealed there's an executive order authorizing him to classify — or declassify — information. It seems pertinent to the legal case of Cheney's former aide, Lewis "Scooter" Libby, who is accused of leaking the name of a CIA operative.
The claim that Biden didn’t have this same authority — is flatly wrong.
Similarly, the Presidential Records Act applies to the Records, not to the President. It prescribes which documents belong to the government and will be retained by the National Archives and which documents are personal for all White House personnel, including the Vice President.
In 1978, Congress passed the Presidential Records Act (PRA), which states that any records created or received by the President as part of his constitutional, statutory, or ceremonial duties are the property of the United States government and will be managed by NARA at the end of the administration.
The Presidential Records Act (PRA) changed the legal status of Presidential and Vice Presidential materials. Under the PRA, the official records of the President and his staff are owned by the United States, not by the President.
So again, Hawley is full of shit.
The fact is though, that Biden didn’t need to use this authority because his notes were not being “illegally retained” by him because these were not “official records of the President.” He was the one who was protected by the PRA, not Trump. He didn’t have any intent to “illegally retain or share” classified material that was marked as such, because his notes weren't marked at all. And the documents he did retain that were marked as classified were “accidental” and “inadvertent,” there was no intent to defy the law.
Biden didn't make a specific decision to deliberately and intentionally retain these materials. That’s something that Donald Trump decided to do. That’s something that Donald Trump lied about and obstructed the National Archives and DOJ’s attempts to recover those documents. Biden cooperated. Biden invited the FBI to search his premises, Trump deliberately defied a subpoena and forced the FBI to execute a search warrant because he lied to them about the documents he still had.
All the claims that the Justice system is “two-tiered” here are ridiculous. Biden didn’t commit a crime — Trump did.
I think this episode makes it clear that there needs to be a “cleanup” procedure when someone leaves the White House to ensure that there are no classified documents among their personal affects. Someone needs to do a sweep or a search to ensure this doesn’t continue happening. There may also need to be a procedure when government lawyers review personal documents and notebooks for classified references and MARK THEM as they should be marked.
That would eliminate the ambiguity. There would be no question what is what and which is which.
But none of this was a crime — none of this could ever possibly be prosecuted — regardless of the state of Biden’s memory.
And Robert Hur knows that is the case.
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