Joe Biden inviting the FBI to search his home is a huge gamble to avoid criminal liability for classified documents. But it is also dangerous

President Joe Biden’s decision to allow the FBI to search his Delaware home last week opened him up to new negative attention and embarrassment after the first discoveries of classified documents at home and a former office. But it’s a legal and political calculation that will help the prospect pay off in the long run as he prepares to look again.

The amazing, nearly 13 hours of manhunt by FBI agents at the sitting president’s home in Wilmington is the latest political black eye for Biden, who has vowed to restore fairness to the office after the troubled administration of his predecessor, Donald Trump.

But in his actions, Biden did more than comply with the federal investigators assigned to investigate discovery in the records. The president sought to show that, unlike Trump, he never intended to keep classified materials — an important distinction that experts say minimizes the risks of criminal liability.

White House spokesman Ian Sams said Monday that Biden’s own lawyers had invited the FBI to conduct the search. “This is a voluntary proactive offer to the president’s personal lawyers at the DOJ to have access to the home,” he said, adding that it shows “how seriously” Biden is taking the issue.

Mary McCord, a former senior security officer at the Department of Justice, said, “If I’m a lawyer and I’m representing the president of the United States and I want to show, ‘I’m fully cooperative, and I take care to show the transparency. to the American public, and I take it seriously,’ I think this is the advice I would give as well.

That’s not to say he approves his handling of documents.

“I think it’s wrong that he has documents there,” he said. “It shows the lapses at the end of the administration,” when Biden completed his time as vice president under Barack Obama.

Biden’s personal lawyers first discovered classified materials last Nov. 2, a week before the midterm elections, as they cleaned out an office used by Biden at the Penn Biden Center in Washington. Since the first discovery, Biden’s team has adopted an accommodating approach to the investigation, although they have not been fully transparent to the public.

They did not acknowledge the first discovery before the election, although they quickly notified the National Archives, returned the documents the day after they were found and coordinated the subsequent search and discovery with the Department of Justice.

They also did not hold back interviews with staffers, 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.

He felt some responsibility but had “absolutely” no knowledge of the classified documents being packaged, according to a person familiar with his thinking. The person spoke on condition of anonymity to discuss the ongoing investigation.

Biden himself said he was surprised that the documents were in his possession. On Thursday, disappointed with all the studies, he told reporters: “It’s not there.”

It all fits into one theme: Biden and his aides continue to mishandle the document unintentionally. As far as Biden’s possible legal exposure, the question of intent is critical: Federal law does not allow anyone to save. classified documents in an unauthorized locationbut it is only a crime that can be prosecuted if someone is found to have “knowingly” removed the documents from their proper place.

However, welcoming the FBI’s search could backfire depending on what else is found. Agents last week seized an additional round of items with classified markings, and some of Biden’s handwritten notes and materials from his tenure as vice president and senator.

That’s in addition to documents already provided to Biden’s lawyers. Agents may 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 sign off on additional searches, referring the matter to the DOJ — which has asked the White House not to announce the searches in advance.

Criticism of Biden’s handling of the matter from Democrats as well as Republicans. Sen. Dick Durbin, D-Ill., the chairman of the Senate Judiciary Committee, said the president should be “ashamed of the situation.”

“I think he should have a lot of regret,” added Sen. Joe Manchin, DW.Va. Even Biden’s own lawyers called it a “mistake.”

Republicans, meanwhile, are looking to use their newfound powers in the House, where they regained most this month, to investigate Biden’s handling of the documents and hope to capitalize on the investigation.

“It is troubling that classified documents were improperly stored in President Biden’s home for at least six years, raising questions about who may have reviewed or had access to classified information,” House Oversight wrote. Chairman James Comer, R-Tenn., to request logs of visitors to Biden’s residence.

In response to Comer’s requests for copies of documents taken from Biden’s home, the White House counsel’s office on Monday said it was no longer in its possession. It said the White House will “accommodate legitimate oversight interests,” while also “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 has previously claimed he has the most transparent administration in history,” said Oversight Committee spokeswoman Jessica Collins, who added that the panel’s Republicans will use ” all possible tools” to get answers.

Trump and some of his supporters have not spoken, claiming that Biden is guilty of more serious mishandling of classified documents than the Democrats who have accused Trump. The former president is sure to push that accusation hard as he campaigns to reclaim the White House.

Trump’s investigation has also come into focus of classified documents ending up in a house. In that case, however, the Justice Department issued a subpoena for the return of documents that Trump refused to return, then obtained a warrant and seized more than 100 documents during a dramatic search in August at his Florida estate, Mar-a-Lago. Federal agents are investigating potential 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 against criminal charges for Hillary Clinton over classified emails she sent and received through a private server when she was secretary of state, FBI Director James Comey previously said that the Justice Department —in choosing which cases to bring— on the last century — looking for evidence of criminal intent , signs of disloyalty to the US, retention of a large number of classified documents or any effort to obstruct justice.

It’s unclear whether agents in Biden’s investigation progressed beyond the question of intent. The White House did not answer key questions, including how classified information from his time as vice president might have ended up inside his Delaware home. But Attorney General Merrick Garland appointed special counsel to lead the investigation given the sensitive politics around it.

Garland stated Monday, in response to a question: “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’s our always do and that’s what we do with the things you’re talking about.”

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

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