It’s OK When We Do It

In fall 2020, I was one of the few writers to cover a much ignored aspect of Joe Biden’s years between leaving public office in 2016 and entering the Oval Office in 2021: the two think tanks founded under his name. One of them, the Biden Institute for Public Policy at the University of Delaware, was chaired by his sister and longtime campaign manager Valerie Biden Owens. This was where his more political aides like consultant Mike Donilon set up shop. 

Recently, I proposed that one of the first actions of the House Committee on Government Oversight might be to subpoena Biden’s records when he served in the U.S. Senate—records kept under seal at the University of Delaware, which has denied repeated FOIA requests for their contents.

Those blurry aspects of the Biden public record may pale in comparison to those concealed by the other think tank, the Penn Biden Center for Diplomacy and Global Engagement. Affiliated with the University of Pennsylvania, the PBC was headquartered in Washington, D.C. Biden was paid $775,000 in salary over two years for serving on Penn’s faculty despite not teaching any courses, according to Philadelphia magazine. 

The Penn Biden Center made headlines once again this week following the revelation that classified documents from Biden’s time as vice president had been stored at the think tank’s Washington office. These documents had apparently been discovered in October and were soon removed and placed in the National Archives and Records Administration. 

As a former vice president, the nature and contents of those documents, and what right the Penn Biden Center had to hold them, is highly questionable. These documents were kept in a rented office across from Capitol Hill. As we’ll see, the implications of this story are potentially huge, regardless of the various explanations and deflections that are being devised after the fact and presented by the White House and its press sympathizers.

Question 1:
How much does criminal intent come into play?

The Excuse: In CBS News’ coverage of the affair, reporter Adriana Diaz asked former federal prosecutor Scott Fredericksen a leading question: “How significant was it that these documents were self-reported . . . voluntarily turned over?” This was used to distinguish it from the ongoing probe of classified documents stored at former President Donald Trump’s Mar-a-Lago estate in Florida. Fredericksen claimed that there was a “lack of intentional conduct,” in contrast to the Mar-a-Lago case.

The Answer: Of all the former prosecutors to interview, CBS News  selected their go-to analyst, Fredericksen, who was a repeat Biden donor in 2020. In June, he described the testimony of former White House aide Cassidy Hutchinson as “a Watergate moment” that could lead to Trump’s indictment and prosecution. This despite the fact that no corroborating information has emerged to substantiate Hutchinson’s claims about an assault by Trump of a Secret Service agent. Two other agents dispute Hutchinson’s claims.

But Fredericksen is making a number of assumptions here that bear skepticism. The most important one is whether the people who reported the classified documents to the Department of Justice and NARA are the same as those who put them at the Penn Biden Center offices in the first place. If the answer is “no,” then Fredericksen’s statement about intent is irrelevant.

Questions of intent regarding mishandling of classified documents became a major point of contention in July 2016, when then-FBI Director James Comey called a press conference to explain the Bureau’s decision not to prosecute former Secretary of State and presidential candidate Hillary Clinton for keeping classified emails on a private server. 

While Comey outlined a laundry list of irresponsible and reckless actions by Clinton and her staff, he nevertheless recommended that the Department of Justice not prosecute based his judgment that she lacked criminal intent. There was also the 2012 scandal involving CIA Director David Petraeus, who shared classified documents with his mistress. Petraeus’ criminal intent was debatable, yet he was still charged with a misdemeanor, earning him a sentence of two years probation and a $100,000 fine.

Question 2:
What right did Joe Biden have to possess the documents?

The Excuse: In response to the revelation Monday, Biden’s defenders, including Rep. Jamie Raskin (D-Md.), refused to address that question at all. Instead, they emphasized the “immediate and proper action” by Biden’s lawyers to return the documents to the National Archives. 

The Answer: As with the Mar-a-Lago case, much of the hype is fueled by the obvious uncertainty over the nature and volume of the classified information, which of course may never be fully revealed. The New York Times described the find as “a small number” of classified documents. 

Trump, as president, arguably had the authority to declassify the documents in his possession. The process by which he could do so is under dispute

As the former vice president, however, Biden did not have such authority during his time at the Penn Biden Center. A fair question that should be added is why he was bringing classified information at all to his think tank office. What kind of work could possibly be undertaken there requiring such documents to be physically brought in? Unlike Mar-a-Lago which functions in part as Trump’s personal residence, the PBC is a place of business.

Question 3:
Were the documents brought by Biden, or did they belong to a different PBC staff member?

The Excuse: Most of the reports so far seem to indicate that the documents were Biden’s.

The Answer: While this is an outside possibility, Biden was not the only person at the Center who potentially had access to classified material and brought it to the think tank office. It could have been a senior diplomat, a former Pentagon official, White House aide, or even a cabinet member. 

As I detailed in August 2020, most of the think tank’s staff consisted of former national security and State Department alumni from the Obama Administration. As of today, almost all of them have been rehired to positions in either the Pentagon or the State Department, or they are working in the White House itself. Some of them serve in senior positions, including  Michael Carpenter, ambassador to the Organization for Security and Cooperation in Europe (OSCE), and Undersecretary of Defense for Policy Colin Kahl. The center’s first managing director was Antony Blinken, who is currently Biden’s secretary of state.

This is yet another question that could lead to many more. Biden was not present for the day-to-day operations of the center during his four years out of office, as he was often traveling, campaigning, or spending time at his houses in his home state of Delaware. It is yet unknown how secure the storage location of the documents was, and who else had access to it. 

Question 4:
What risks of exposure existed at the Penn Biden Center?

The Excuse: News reports are not delving into the nature of the classified information, so Biden’s defenders are not addressing any of the possible damage that could have occured if it fell into the wrong hands. They rationalize that since Biden’s lawyers immediately handed over the classified documents to the National Archives upon discovery, no further investigation is necessary.

The Answer: The Penn Biden Center in 2020 had been the subject of a complaint to the U.S. Department of Education by the National Legal and Policy Center alleging that the University of Pennsylvania had accepted $70 million in donations from China, $22 million of which had remained anonymous. Penn never revealed the sources of those donations. 

In light of that complaint, I argued that the House Oversight Committee would be well within its rights to subpoena Biden’s Senate records, which are under seal at the University of Delaware, and various records that NARA has refused to hand over from his tenure as vice president. To those subpoenas should be added demands for the identities of the anonymous foreign donors to the Penn Biden Center. By law, Penn is required to report foreign gifts exceeding $250,000. But Penn officials have rebuffed or ignored requests for the information from the Department of Education and Philadelphia magazine.

In June, Biden named Penn President Amy Gutmann as his nominee for ambassador to Germany. The Senate confirmed her nomination with very little discussion of the PBC and the mysterious foreign donations. Given the amount of money flowing through the center from overseas and the senior administration positions of so many center staffers, were the classified documents found at its office simply stored there? Or had they been shared with another party or parties?

Question 5:
What’s more important—the volume, location, or nature of the classified information found at Penn Biden Center? How does it compare to the material removed from Mar-a-Lago?

The Excuse: Biden apologists including Harvard Law professor Laurence Tribe claim that it is “[n]ot just apples to oranges, but apples to orange orchards” when it comes to the respective actions of Biden and Trump. Tribe, a distinguished legal theorist but also a notoriously biased commentator claimed in August 2019 that Trump is “a Russian asset and an idiot,” five months after the Mueller Report was released and failed to show any evidence of Trump’s 2016 campaign colluding with Moscow. 

Meantime, NBC News and MSNBC legal commentator Joyce Alene contends that the big difference was that Trump kept classified documents at his home, while Biden kept them in an “office setting.” Similarly, Biden partisans are pointing to the relatively low volume of documents (only 12 or so, as opposed to hundreds) and the prompt cooperation of Biden’s attorneys with the National Archives as a reason to dismiss the story as anything more than trivial.

The Answer: Unfortunately for Biden’s defenders, evidence of additional batches of classified material is now coming to light. So nobody knows exactly how many documents the Penn Biden Center may have held or how much more may be discovered. 

By focusing on everything but the sensitivity of the documents, Biden’s boosters are attempting to distract from several stupendous findings that have come out since the disclosure: Biden said on Tuesday that he was “surprised” to learn that classified material was discovered at the PBC. The office itself was not a secure location. Moreover, Biden, as a former vice president, had no power to declassify anything

The latest revelations suggest the documents included sensitive information about Ukraine, Iran, and the United Kingdom. This only fuels speculation, as Biden was involved in lobbying Congress to approve the Iran nuclear deal and also steering Obama Administration policy in Ukraine.

Tribe’s fears about the Mar-a-Lago collection of documents include a tweet voicing the nightmare fantasy that Trump might have shared nuclear secrets with Russia, Saudi Arabia, or other foreign governments. Yet given the sensitive nature, unsecure location, and unknown circumstances leading to the placement of the classified material at the Penn Biden Center, the professor’s political blind spot effectively forces him to deny a much greater and more apparent risk from Joe Biden. Congress would do well to get to the bottom of it.

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