Strategy behind allowing FBI to search Biden’s home

WASHINGTON—

President Joe Biden’s decision to allow the FBI to search his Delaware home last week exposes him to new negative publicity and embarrassment following the discovery of confidentially-sealed documents at his home and former office, but that’s part of a legal and political calculation that aides believe will pay off in the long run as he prepares to seek re-election.

The rare nearly 13-hour search of the incumbent Wilmington home of the president is the latest political bruise for Biden, who has vowed to restore decency to office after the tumultuous tenure of his predecessor, Donald Trump.

However, with his actions, Biden is doing more than just complying with the assigned federal detectives investigating the discovery of the documents. The president wants to show that, unlike Trump, he never intended to withhold confidentiality-sealed material — a key distinction that experts say lowers criminal liability risks.

White House spokesman Ian Sams said Monday that Biden’s own lawyers invited the FBI to conduct the search. “This was a voluntary proactive offer from the president’s personal lawyers to the DOJ (Department of Justice) to have access to the house,” he reported, adding that it reflected “how seriously” Biden takes the issue.

Mary McCord, a former senior Justice Department official for homeland security, said: “If I were a lawyer representing the President of the United States and I wanted to show ‘I’m fully cooperating, I do care that I’m projecting transparency to the American people and I do take this in Seriously,’ I think this is the advice I would give him as well.»

That doesn’t mean she approves of Biden’s handling of the documents.

“I think it was wrong that I had those documents there,” he said. “It shows flaws at the end of the administration,” as Biden was wrapping up his time as vice president under Barack Obama.

Biden’s personal lawyers first discovered the confidential materials on November 2, a week before the midterm elections, while clearing out an office Biden had used in the Penn Biden Center in Washington. Since that initial discovery, the Biden team has taken a cooperative approach to the investigation, even if it has not been completely transparent in public.

The White House has cited the «risk» of sharing information «that is not complete» and that could potentially interfere with the investigation to justify not releasing more information publicly.

They did not acknowledge the first discovery before the election, although they promptly notified the National Archives and Records Administration (NARA), returned the documents the day after they were found, and coordinated subsequent searches and discoveries with the Justice Department.

Nor have they been in the way of interviews with staff, including Kathy Chung, Biden’s executive assistant when he was vice president who helped oversee the packing of boxes brought to the Penn Biden Center.

She feels some responsibility, but she had «absolutely» no knowledge about which confidentially-sealed documents were being packed, according to a person familiar with her reasoning. The person spoke on condition of anonymity to comment on an ongoing investigation.

Biden himself has said he was surprised the documents were in his own possession. Last Thursday, frustrated by all the attention to him, he told reporters: «There’s nothing significant there.»

It all fits into one theme: Biden and his aides maintain that the mishandling of the documents was unintentional. When it comes to Biden’s potential legal exposure, the question of intent is critical: Federal law does not allow anyone to store confidential documents in an unauthorized location, but it is a prosecutable offense only when someone is found to «knowingly» He took the documents from an appropriate place.

However, welcoming the FBI’s search could backfire, depending on what else can be uncovered. Last week, agents seized an additional group of confidentially-sealed items and some of Biden’s handwritten notes and materials from his terms as vice president and senator.

That’s on top of documents already turned over by Biden’s lawyers. Agents could also choose to search the Penn Biden Center and Biden’s other home in Rehoboth Beach, Delaware, while the investigation continues. Sams declined to say whether Biden would approve additional searches and referred the matter to the Justice Department, which asked the White House not to report the searches in advance.

Both Democrats and Republicans have criticized Biden for the way he has handled the issue. Sen. Dick Durbin, D-Illinois and chairman of the Senate Judiciary Committee, said the president should be «embarrassed about the situation.»

“I think he should be very sorry,” added Sen. Joe Manchin, D-W.Va. Even Biden’s own lawyers have called it a «mistake.»

Meanwhile, Republicans have sought to use their new powers in the House of Representatives, where they regained a majority this month, to investigate Biden’s handling of the documents and hope to capitalize on the investigation, even after they have said it is not priority to investigate the documents withheld by Trump.

“It is concerning that confidential documents have been inappropriately stored in President Biden’s home for at least six years, raising questions about who may have reviewed or had access to secret information,” wrote Rep. James Comer, R-Ky. of the Committee on Oversight and Government Reform of the House of Representatives, when requesting the records of visitors to Biden’s residence.

In response to Comer’s requests for copies of the documents taken from Biden’s home, the White House counsel’s office responded Monday that they were no longer in its possession. He said the White House would «admit legitimate oversight interests» while «respecting the separation of powers and the constitutional and statutory obligations of the executive branch in general and the White House in particular.»

“This is not ‘legitimate’ transparency from President Biden, who once claimed he would have the most transparent administration ever,” Oversight Committee spokeswoman Jessica Collins said, adding that Republicans on the panels would use “every possible tools” for answers.

Trump and some of his supporters have been adamant, claiming that Biden is guilty of worse handling of confidential documents than Trump did, claiming that Democrats have accused the former president in a sanctimonious manner. The former president is sure to forcefully pursue that accusation as he campaigns to recapture the White House.

Trump’s investigation also focuses on top-secret documents that ended up at a home. In that case, however, the Justice Department issued a subpoena for the return of documents Trump had refused to return, then obtained a court order and seized more than 100 documents during a dramatic search in August of his Mar estate. -a-Lago, Florida. Federal agents are investigating possible violations of three federal laws, including one governing the collection, transmission, or loss of defense information under the Espionage Act.

In 2016, when the FBI recommended that Hillary Clinton not be charged with criminal charges for secret emails she sent and received through a private server while she was Secretary of State, then-FBI Director James Comey said the Department Justice, in choosing which cases to pursue over the past century, has sought evidence of criminal intent, indications of disloyalty to the United States, retention of large amounts of secret documents, or any attempt to obstruct justice.

It is unclear if the agents in the Biden investigation have moved beyond the question of intent. The White House has not answered key questions, including how confidentially-sealed information from his time as vice president could have ended up at his Delaware home. However, Attorney General Merrick Garland appointed a special prosecutor to lead the investigation, given the sensitive politics surrounding it.

In response to a question, Garland stated Monday: “We don’t have different rules for Democrats or Republicans… We apply the facts under the law in each case in a neutral and nonpartisan manner. That is what we always do and that is what we are doing in the matters to which you refer.

A key test of the limits of Biden’s strategy revolves around the question of whether the president will agree to give an interview with federal investigators if requested. So far, White House officials have refused to say if he would do so or under what terms.