Biden documents row: Why the White House stayed silent on classified information for 68 days
The goal for the Joe Biden team was to win the trust of Justice Department investigators and demonstrate that the US president and his team were cooperating fully
The decision by President Joe Biden and his top advisers to keep the discovery of classified documents secret from the public and even most of the White House staff for 68 days was driven by what turned out to be a futile hope that the incident could be quietly disposed of without broader implications for Biden or his presidency.
The handful of advisers who were aware of the initial discovery on 2 November — six days before the midterm elections — gambled that without going public, they could convince the Justice Department that the matter was little more than a minor, good-faith mistake, unlike former President Donald Trump’s hoarding of documents at his Florida estate.
In fact, the Biden strategy was profoundly influenced by the Trump case, in which the former president refused to turn over all the classified documents he had taken, even after being subpoenaed. The goal for the Biden team, according to people familiar with the internal deliberations who spoke on condition of anonymity, was to win the trust of Justice Department investigators and demonstrate that the president and his team were cooperating fully. In other words, they would head off any serious legal repercussions by doing exactly the opposite of what the Biden lawyers had seen the Trump legal team do.
In the short term, at least, the bet seems to have backfired. Biden’s silence while cooperating with investigators did not forestall the appointment of a special counsel, as his aides had hoped, but still resulted in a public uproar once it became clear that the White House had hidden the situation from the public for more than two months. Biden’s advisers still hope that the trust they believe they have engendered with investigators by not litigating the matter in public may yet pay off in the long run, by convincing the special counsel that nothing nefarious took place.
In the meantime, though, the strategy has left Biden open to withering criticism for concealing the discovery for so long. And now, after a productive year that had seemed to leave the president in a strong position to announce a reelection campaign, the handling of the documents case has eroded his capacity to claim the high road against Trump, while also raising questions about his team’s ability to navigate Republican attacks from Capitol Hill.
On Thursday evening, during a trip to California to tour storm damage, Biden tried to brush off questions from reporters about whether he regretted not divulging earlier that classified material had been found.
“We are fully cooperating, looking forward to getting this resolved quickly,” he said. “I think you’re going to find there’s nothing there. I have no regrets. I’m following what the lawyers have told me they want me to do. It’s exactly what we’re doing. There’s no ‘there’ there.”
The discussions on how to deal with the matter, at least at the start, were confined to the husband-and-wife pair of Bob Bauer, the president’s top personal attorney, and Anita Dunn, a White House senior adviser; Stuart F. Delery, the White House counsel; and Richard Sauber, a White House lawyer overseeing the response to investigations, according to people familiar with the situation.
Eventually, the circle widened slightly, but the matter remained closely held, and the idea of preemptively making the discoveries public does not seem to have been seriously considered. White House press secretary Karine Jean-Pierre told reporters that neither she nor her staff was involved in crafting the strategy of when to disclose the development.
Still, officials have said there was no hesitation when it came to quickly informing officials at the National Archives and Records Administration, which is responsible for securing such documents. The president’s legal responsibility was clear, and his lawyers had no intention of fighting with the archivists the way Trump and his advisers had done for months after leaving office in 2021.
Informing the public was a different matter, with different risks. Biden had long promised that he would never politicise the Justice Department like his predecessor had done repeatedly. In recent days, White House officials have said they have resisted the urge to provide more information about the documents because they do not want to look like they are putting their thumb on the scale in an investigation centred on the president and his top aides.
“We understand that there’s a tension between the need to be cooperative with an ongoing DOJ investigation, and rightful demands for additional public information,” said Ian Sams, a spokesperson for the White House Counsel’s Office. “And so we’re trying to strike that balance and being as clear as we can.”
But the result has been ugly sessions in the White House briefing room as Jean-Pierre has been pummeled day after day for refusing to provide answers. All of which has led to second-guessing among Democrats and even within the West Wing. Some in the White House, speaking on the condition of anonymity, acknowledged that the disciplined way that the president and his inner circle withhold information, sharing it only on a need-to-know basis in almost all cases, has hurt Biden in a situation where officials had the option to be proactive.
The choice to keep silent for so long exacerbated the political damage when the news finally leaked out on 9 January. The days that followed, with a series of rolling disclosures and misstatements by the president’s public relations team, cemented the impression that Biden had not been forthcoming.
Also read: Why special counsels appointed in Biden and Trump classified documents’ case aren’t fully independent
Since the Biden documents were found last fall, there has been no lack of private communication between the White House and the Justice Department.
Starting on 10 November, just one day after Attorney General Merrick Garland assigned a Trump-appointed U.S. attorney to look into the matter, the president’s counsellors were in “regular contact,” as Bauer said in a statement, with their counterparts at the Justice Department.
In a letter to Bauer in mid-November, a senior Justice Department official outlined the next steps: They would need permission to review the documents found at the offices of the Penn Biden Center for Diplomacy and Global Engagement, located just minutes from the Capitol and the White House. The letter, first revealed by The Washington Post this week, also indicated the need to search other locations where similar documents might be found.
The quiet cooperation continued for weeks, even up to the moment that Garland announced the appointment of a special counsel, Robert Hur, to investigate the matter last week. Moments before Garland spoke, Bauer called the department to inform them that another page of classified information had been found.
It was a classic legal strategy by Biden and his top aides — cooperate fully with investigators in the hopes of giving them no reason to suspect ill intent. But it laid bare a common challenge for people working in the West Wing: The advice offered by a president’s lawyers often does not make for the best public relations strategy.
Such tensions are common in politically charged investigations. Former President Bill Clinton’s political and communications advisers regularly lashed out at his lawyers for withholding information from them about Clinton’s relationship with Monica Lewinsky, the former White House intern. Lawyers for Trump often begged him not to tweet about the legal cases against him, for fear of antagonising prosecutors.
In Biden’s case, advisers thought that the very act of publicising the discovery of the documents would create a political furore that would make the appointment of a special counsel unavoidable. They reasoned that the discovery of documents long after leaving office was not that unusual and, as long as there was no intent to violate rules on classified papers, was generally handled without conflict, so the only thing that would create legal exposure would be drawing public attention to it.
As Bauer later said in a statement, the lawyers worried that anything said publicly could end up being wrong after further investigation.
“Regular ongoing public disclosures also pose the risk that, as further information develops, answers provided on this periodic basis may be incomplete,” he wrote last week.
Also read: What does Joe Biden’s silence on the death penalty mean?
An Information Trickle
That has proved true. Details about the documents — where they were found, what they are about, where they came from — remain elusive more than 10 days after their existence was first made public by CBS News.
The White House has refused to explain why it took nearly six weeks after the initial discovery of documents to search the president’s home in Wilmington, Delaware, where a second batch was found on 20 December. And it has not been said why personal lawyers for the president who do not have security clearances were the ones conducting the searches, but people close to the case said that was done with the approval of the Justice Department.
Advisers have said there was no sense of urgency at first to search the Wilmington and Rehoboth Beach, Delaware, homes because the Secret Service guards both of them and therefore any sensitive documents that might be there would be safe. They did not think they would find any documents in either place, an assumption that turned out to be right about the beach house and wrong about the Wilmington one, where papers were found in the garage and a nearby room.
Once the discovery of the original batch of documents was revealed, Dunn was adamant that the White House should keep the public information flow to a trickle and focus instead on how different Biden’s case was from the broader investigation into his predecessor, according to people familiar with the discussions.
Dunn also stressed the need to underscore the differences between Biden’s cooperation with the archives and Justice Department and Trump’s defiance.
White House officials are suspicious of the leaks that made the case public, thinking that it was meant to drive the very outcome that has taken place. But they also have concluded that the public sees Biden and Trump very differently. They say Biden draws on a decadeslong reputation for integrity and honesty while Trump is seen by many as having lied frequently throughout his tenure in office.
Still, current and former White House officials said Biden’s aides focused too much on making that comparison and not enough on ensuring that all the relevant facts were revealed all at once.
Senior Justice Department officials were surprised the White House had not released a detailed timeline of the discovery of the caches before Garland announced Hur’s appointment last week, according to three people with knowledge of the situation.
In announcing Hur’s selection, Garland, who seldom discusses prosecutorial moves not previously disclosed in court filings, offered his own detailed timeline of the department’s involvement in the case, revealing for the first time that the second batch of classified material had been discovered by Biden’s team on 20 December, weeks after the first.
That left the Justice Department in the position of appearing more transparent about the matter than the White House. For the president’s team, that brought immediate blowback as reporters pressed for more answers and Republicans accused the White House of a cover-up.
But to Biden’s lawyers, the gamble is not over yet. If their strategy ultimately leads to the case being resolved without charges, they reason, then the short-term pain will be worth it — a bet with a lot riding on it.
Michael D Shear, Peter Baker and Katie Rogers, c.2023 The New York Times Company
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