Below is my column in Fox.com on President Joe Biden’s comment of his corvette and the unfolding of a defense from his counsel, including the “inadvertence” defense. While this defense is better than the conspiracy theory put forward by Rep. Hank Johnson (D., Ga.) and others that the documents may have been planted, it has some obvious risks and conflicts.
Here is the column:
“Like a car, only better.” That slogan for Corvette sold a lot of cars, but, until last week, it was never used with regard to classified documents. President Joe Biden responded to a question Thursday from Fox’s Peter Doocy about the disclosure of additional classified documents found in his garage next to his corvette at his home in Delaware. The president responded “My Corvette is in a locked garage, OK? So, it’s not like they’re sitting out on the street.”
Like his car, Biden had classified documents stored in his garage but it was hardly better.
There is no question that Biden’s 1967 Chevrolet Corvette Stingray is one hot car. Most of us would take the Stingray over an assortment of classified Ukraine briefing papers or memos. However, foreign intelligence may be more discerning.
The fact is that the argument that you protected classified documents as carefully as your Corvette will not cut it with the criminal code. As the Justice Department stated in the Trump filings, there mishandling of classified material can be a criminal act. The Justice Department cited provisions included 18 U.S.C. 793 (Gathering or Transmitting Defense Information) and 18 U.S.C. 2071 (Concealment, Removal, or Mutilation Generally).
Despite that history, many of experts assured the public, without any evidence but a couple leaks, that there was no criminal conduct involving Biden.
Harvard Professor Laurence Tribe has previously run through the criminal code on what Donald Trump should be charged with, including witness tampering, obstruction of justice, criminal election violations, Logan Act violations, extortion, espionage, and treason by Trump or his family..
Tribe insisted that “without any doubt, beyond a reasonable doubt, beyond any doubt, and the crimes are obvious.” Most recently, that included a charge of attempted murder of former Vice President Mike Pence.
Yet, when Biden was accused as the same unlawful possession of classified information, Tribe needed no further evidence. He declared “One is criminal (Trump). And one is not criminal (Biden). Say it in plain English.”
Mueller’s top aide Andrew Weissmann added “It’s not a crime to accidentally take and retain govt docs. If upon learning that you have docs, you return them, there is no crime.”
Clearly, the Justice Department did not agree. In order to appoint a special counsel, the Attorney General had to find “that criminal investigation of a person or matter is warranted.” That does not mean that there is criminal conduct in this case, but the law prefers, at least for appearance’s sake, to wait for a modicum of evidence before making final judgments.
Biden’s counsel has insisted that this is merely “inadvertently misplaced.” That statement is belied by a couple of facts. First, it seems that these documents were likely moved more than once. Biden left office as vice president in 2017. He presumably took these documents at that time. However, they ended up in different places, including one document found separately from the “garage files” in the residence.
Moreover, Biden had an office at the University of Pennsylvania in Philadelphia after finishing his term in 2017. On February 8, 2018, the Biden Center for Diplomacy and Global Engagement says that it opened its doors in Washington, D.C.
Biden could not have moved into the D.C. office until later that year. So those documents had to be moved from another location with moving trucks and personnel. They then sat in the office for years as other classified documents sat in his garage with his Corvette.
At some point, some documents were sent to the office and some to the residence and garage. What explained this division if it was not based on what the then vice president was working on?
The “inadvertent” defense hardly fits neatly with these facts. Moreover, if Biden worked off any of these documents for his book (which dealt with some of the underlying subjects like Ukraine), the inadvertent defense is not only shattered but could be cited later as an effort to deceive the public.
There are already concerns over the public statements from the president and his staff. The White House was already aware that there was not just one but three discoveries (the Penn Biden office, the garage, and the residence) of classified documents. However, the president indicated that only the Penn Biden office documents were at issue.
Finally, there is a question about the timeline. There seemed to be a general lack of urgency from the government despite finding documents classified at the high “Top Secret/Sensitive Compartmented Information” (TS/SCI) level.
However, it took two days for the archives to notify the Justice Department. It then took seven days after the discovery for the FBI to do a risk assessment. Most notably, after the discovery of classified material in two locations, it was private counsel who discovered the last classified document. That was December 20th. It is not clear if the FBI asked or were allowed to conduct its own search before December 20th given the repeated discoveries in different locations.
While Garland finally made an appointment, he appears to have done so with one huge benefit to Biden. Unlike the sweeping mandate given the special counsel for Trump, the Biden mandate appears quite narrow. There was no reference to the alleged Biden influence peddling scandal, which long ago warranted a special counsel appointment.
We may soon, however, see an extraordinary historical development where both leading candidates for the presidency will be campaigning with their own assigned special counsels.