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4 key questions about the Biden documents

On Jan. 15 lawmakers reacted to the appointment of a special counsel to investigate President Biden's handling of classified documents. (Video: The Washington Post)

At this point, on multiple occasions, documents marked classified have turned up at President Biden’s nongovernmental office or residence.

Though the details that have emerged so far don’t closely parallel those involving former president Donald Trump’s retention of classified documents, the Biden team’s actions have engendered plenty of grumbling, even from allies. And even if it’s eventually determined that no crimes were committed, the retention of these documents, and the handling of the situation by Biden’s team could still be problematic.

Below are some of the big remaining questions.

1. Why the fumbling response?

Perhaps the most inexplicable aspect of the whole situation is how Biden’s team has handled it.

First, there’s the lack of prompt public disclosure: It was more than two months after the Nov. 2 discovery that CBS News first reported on the initial documents on Jan. 9. But while the White House confirmed that initial batch of documents at the time that story was published, it made no mention of the additional documents found on Dec. 20 in Biden’s garage. Biden’s team has said it didn’t want to reveal information about an ongoing investigation, but there is surely a balance to strike.

Then there’s the fact that the Nov. 2 discovery didn’t appear to spur an exhaustive, immediate search. And to the extent that such a search has been conducted and completed, we’ve gotten mixed signals about it.

The first documents were found Nov. 2. Then more were found Dec. 20. Then came one more on Jan. 11, and then five more pages on Jan. 12, after Biden’s team said they called in a lawyer with a security clearance to examine the discovery of the Jan. 11 document.

Timeline: Biden’s retention of classified documents

But the last known discovery of documents actually came after both the White House and Biden’s legal team indicated the search was done.

In a statement on the morning of Jan. 12, Biden attorney Richard Sauber said, referring to the search the previous day, “the President’s lawyers have searched the President’s Wilmington and Rehoboth Beach, Delaware, residences — the other locations where files from his Vice-Presidential office might have been shipped in the course of the 2017 transition. The lawyers completed that review last night.”

And on the afternoon of Jan. 12, White House press secretary Karine Jean-Pierre said “the search is clearly complete.”

But by Saturday, Biden’s lawyers said five more pages had been discovered at Biden’s Wilmington residence on the evening of Jan. 12 — after both of the above statements.

Perhaps the documents had been physically found and collected at that point but hadn’t been thoroughly reviewed and inventoried — hence Sauber citing himself being flown in, and his linking those five pages to the document found Jan. 11. But when you call a search “complete,” you really want to be sure nothing more will come out.

The mixed signals and the fact that these searches spanned more than two months suggest this has been poorly handled at the very least. The next question is why.

2. Are there more Biden documents out there?

As outlined above, the timeline of when documents were identified and when they were disclosed to the public has not unfolded smoothly.

And while some Biden representatives have described the search as conclusively complete, another Biden lawyer expressed less confidence: In that Saturday statement, Bob Bauer indicated the team was uncertain whether all relevant documents have been found. “Adhering to this process means that any disclosure regarding documents cannot be conclusive until the government has conducted its inquiry,” Bauer said.

3. What crimes could even be in play?

There is no clear evidence that Biden committed a crime; nor do the potential criminal charges that the Justice Department cited for its search of Mar-a-Lago appear to apply here, given they generally dealt with Trump’s refusal to return the documents and potential obstruction of justice.

But there is plenty we don’t know, and this is now a criminal investigation, with a special counsel appointed. So it’s worth looking at what crimes could even be in play.

Chief among them is 18 U.S.C. 793(f), a provision of the Espionage Act which was a focal point in the Hillary Clinton private email server investigation. This makes it a crime for someone to permit sensitive documents “to be removed from [their] proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed” through “gross negligence.” But gross negligence is a high bar (which FBI director James B. Comey said Clinton hadn’t cleared). It essentially requires Biden’s conduct to walk up to the line of intentionally retaining the documents.

The other part of that provision that could hypothetically be in play: It prohibits knowing such documents have been improperly removed and failing “to make prompt report of such loss, theft, abstraction, or destruction to his superior officer.”

At this point, there is no evidence that Biden’s team failed to report documents being found. In fact, it has said repeatedly that it has been transparent with the relevant authorities when the documents were discovered, which initially led to the appointment of a U.S. attorney to review the matter.

Notably, the search warrant affidavit in the Mar-a-Lago search cited a different provision of the Espionage Act: 18 U.S.C. 793(e). That provision makes it illegal for someone with “unauthorized possession” of potentially damaging national defense information to “willfully” transmit it to someone not entitled to receive it, or to willfully retain it and fail “to deliver it to the officer or employee of the United States entitled to receive it.” So even if the Biden documents were viewed by someone without proper access, the documents would need to have been willfully shown to that person.

It’s also worth emphasizing here that, while the Espionage Act is broad and in some cases doesn’t require intent, it has generally only been prosecuted when the wrongdoing has been purposeful. For his part, Biden has said he was “surprised” at the presence of such documents in his office, and Sauber has expressed confidence that the evidence will show they were “inadvertently misplaced.” If that’s true, it’s unlikely this would ever be prosecuted — even if the Justice Department did prosecute incumbent presidents, which it doesn’t.

(The other laws cited in the Trump search warrant affidavit dealt with “willfully” concealing, removing, mutilating, obliterating, or destroying such records, and with obstructing an investigation. Again, that concerned not returning the documents and what Trump did with them when they were in his possession.)

4. What’s in the documents?

Most of the laws described above don’t account for the actual content of the documents, beyond their being sensitive or classified, or specifically dealing with national defense information. (In some cases, though, the law does not hinge on a document’s classified status — as was noted when Trump’s legal team suggested he might have declassified them.)

But even just from a good-government perspective, the content matters. At the very least, the situation involved someone storing sensitive information someplace it was not authorized to be. That raises the possibility of someone without proper access (or, in the worst-case scenario, an enemy of the state) seeing it.

In Trump’s case, we know some things about what documents he had. We know there were more than 300 classified documents involved, across three separate retrievals (including the eventual search at Mar-a-Lago), and dozens marked “top secret.” The Washington Post has reported that one seized document dealt with a foreign country’s military defenses, including its nuclear capabilities. It has also reported the documents include highly sensitive intelligence having to do with Iran and China.

The number of classified documents in Biden’s case is thus far smaller — around 20 in total, according to Biden’s lawyers. The Post has reported that at least some documents initially found on Nov. 2 at the Penn Biden Center were marked top secret.

In both cases, learning the extent of what was in the documents is tricky, given this is sensitive information that the government can’t just distribute far and wide. But it will surely be a crucial part of the special counsel’s review. And even if that review concludes that no laws were broken, whatever we ultimately find out could color assessments of just how bad this episode was.

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