The second half of Joe Biden’s presidential term has officially gotten off to an ignominious start.
Earlier in the week, CBS News first broke the story that Biden had been storing classified documents, taken from his previous stint as vice president to Barack Obama, at the Chinese-funded Penn Biden Center for Diplomacy and Global Engagement “think tank.” Those classified documents were first identified by Biden’s personal attorneys, CBS reported, on Nov. 2—a full six days before the midterm elections. Richard Sauber, Biden’s special counsel, claimed that the White House counsel’s office quickly notified the National Archives, which seized the documents posthaste.
That alone would be bad enough for a president who utterly excoriated former President Donald Trump in the aftermath of last August’s unprecedented predawn FBI raid at Mar-a-Lago, Trump’s palatial Palm Beach estate, due to Trump’s own classified document retention scandal. Biden openly wondered to CBS’ “60 Minutes” news program weeks after the FBI raid “how anyone could be that irresponsible.”
The galling hypocrisy from the Penn Biden Center incident would have been bad enough. But then, Joe Biden’s week got even worse.
Adding insult to injury, on Thursday two separate tranches of additional classified documents from the Obama-Biden administration were found in Biden’s Wilmington, Delaware, personal home. All but one of the documents was found in a storage space in Biden’s garage. That garage was “locked,” the president quickly pointed out in a flippant attempt at de-escalation, and also housed his prized Corvette. One other classified document was found strewn about elsewhere in the house, outside the garage.
Attorney General Merrick Garland responded to the news with the appointment of a special counsel to investigate Biden’s misdeeds. Garland, of course, had done the same for Trump almost two months prior, on Nov. 18. At least from Garland’s perspective, it seems both men are “irresponsible” enough and present sufficiently politically delicate positions so as to require a special counsel.
But obvious similarities—hence, Biden’s egregious hypocrisy stemming from his earlier attempt to seize a moral high ground—in these situations aside, there are some crucial differences. Those differences do not reflect well on the current White House occupant.
By far the most important difference is the constitutional distinction in the statuses of the two men at the center of this two-pronged saga: Donald Trump was president of the United States, while Joe Biden was merely vice president of the United States during the time that he absconded with classified documents.
That distinction may not seem like a big deal, but from a constitutional perspective, it makes all the difference in the world. The president of the United States alone is vested by Article II of the U.S. Constitution with the “executive Power” of the national government. This prosaic textual truism forms the crux of what constitutional lawyers—who, being lawyers, make things seem more complicated than they really are—refer to as “unitary executive theory.” The vice president of the United States, in fact, possesses no more “executive Power” than does a Cabinet official, a White House janitor, or even a reader of this column.
The upshot is that, as this column argued after August’s Mar-a-Lago raid, “Trump had unilateral, plenary authority to declassify any document that he wanted to declassify—period.” Biden possessed no such similar power (he does now, as president). Furthermore, as the same August column argued, “all ex-presidents receive various taxpayer-funded accoutrements, among them a staff with security clearances and secure facilities (SCIFs) for the maintenance of classified records.” Biden, as an ex-vice president and not an ex-president, had no such niceties; he merely had a garage with a lock secure enough for his Corvette. What’s more, the Presidential Records Act also permits departing presidents to take personal copies of any of their records; the statute affords no such similar protection for departing vice presidents.
From a legal perspective, we will see where freshly minted special counsel Robert Hur goes with his investigation. And from a political perspective, the Biden administration’s astounding hypocrisy on this matter will surely face a blowback.
But perhaps the most pressing question is: Why? Why was there a leak to CBS News just now, over two months after Biden attorneys discovered the first tranche of classified documents deep in the bowels of a Penn Biden Center office? Why has there been such a slow, drip-drip, dramatic leaking and reporting of various classified document tranches throughout this whole week?
It is thoroughly unsurprising that the federal law enforcement apparatus and the corporate media buried the news of Biden’s malfeasance on the precipice of the midterm elections. The “Democrat-Media Complex,” as the late Andrew Breitbart called it, demands nothing less than such complicity.
But the timing of the leak from various federal law enforcement actors now, just as Biden is beginning the second half of his first term, suggests there is real internal turmoil over at the Democratic National Committee. Perhaps someone at the DNC instructed deep-state spooks that now would be a particularly propitious time to leak sordid details to the media. Perhaps someone at the DNC thought that Joe Biden did his job by shepherding his party through the midterms without succumbing to the much-feared “red wave,” but that he is now disposable and should be replaced at the ballot in 2024 by Gov. Gavin Newsom (D-CA). Loath though I am to speculate, it is difficult to think of a sounder explanation as to why, only now, all of this is coming out.
There are many, many open questions here. Here’s hoping Special Counsel Hur can provide some answers.
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