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Re: NBC News: Say, Did Anyone Notice That Biden Broke the Law? (Updated)

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Joe's brain

Feb 19, 2024, 2:38:33 PMFeb 19
On 21 Mar 2022, Wi1liam T T <> posted some

> Biden needs to be locked up for lying.

The deuce you say. It took several days, but NBC News' Ken Dilanian
reported today -- on a weekend -- that Robert Hur actually had a case
against Joe Biden for felony violations of 18 USC 793. Dilanian refers to
this as "one of the most surprising findings" in Hur's report, but was it
surprising at all?

To Democrats, Hur’s finding that there was no criminal case to bring
against the president is the most important takeaway.

But to some national security experts, the disclosure that Biden told his
ghostwriter that he discovered classified documents in his Virginia home
in 2017 — with no indication he returned them — was unexpected and
troubling. So was the revelation that Biden disclosed classified
information to the ghostwriter on at least three occasions, and that he
stored notebooks full of state secrets in unlocked drawers in his home

They said a senior government official like Biden should be held to a
higher ethical standard than whether a jury would convict him of a felony.

“It may not be criminal, but it’s reckless and awful, because you have no
idea what sources and methods you are putting at risk,” said NBC News
legal contributor and former federal prosecutor Chuck Rosenberg. “Someone
who served as the vice president of the United States should know better.”

Actually, Rosenberg should correct that, because some of those documents
go back to Biden's time in the Senate. And those weren't just found at
Penn's Biden Center either, but in the garage of Biden's Wilmington home.
Hur's report details the Senate records in a full chapter (Chapter 8, page
170), but discusses them briefly starting on page 27:

In Mr. Biden's garage, agents found several documents with classification
markings dating from Mr. Biden's time in the Senate in the 1970s and
1980s. Some of those documents relate to foreign trips Mr. Eiden took as a
senator, some of which he chronicled in his 2007 memoir, Promises to Keep.
Agents found those Senate-era documents in a storage closet in Mr. Biden's

Why is this important? Senators and House members have no individual
custodial authority over classified materials. To access classified
material, they have to use an authorized secure facility and must leave
the material in place. Presidents, vice presidents, and executive-branch
officials do have individual custodial authority, but also cannot remove
material from designated authorized secure facilities to keep them in non-
secure areas. (This is why Donald Trump got charged, along with his
refusal to cooperate in returning the material.) But a Senator had no
authority to move them at all in the first place.

There is little doubt that Biden violated the law, and to the idea of that
being a surprise, there hasn't been any doubt about that since
investigators started hauling boxes of these documents from Biden's
garage. The primary issue Hur raised was whether prosecutors could get a
jury to convict Biden beyond a reasonable doubt based on a "willfulness"
standard, as Hur outlines in the executive summary. This is the key
distinction between Biden and Trump on this point; Biden cooperated with
investigators while Trump not only balked but then allegedly obstructed a
grand-jury subpoena to retain the documents. That goes a very long way to
proving "willfulness" to a jury about the retention of classified

To put it another way: Had investigators found a stolen car in Biden's
garage, they may not have been able to convict him of the theft -- but
that doesn't mean the theft didn't occur. A crime was still committed that
put stolen material in Biden's garage. And they would still have to prove
that Biden willfully housed the stolen car, which would be made much more
difficult if Biden's cognitive state was poor enough that it could be
disputed that he even realized the stolen car was there.

But even that only goes so far. Under 18 USC 793, willfulness is an
element of the crime, but there's certainly evidence of it here as well.
Biden 'discovered' classified material at his house in 2017, when he was
out of office and not at all authorized to retain it. He commented about
it to his biographer and then provided him access to the material, as Hur
details in his report, even though the biographer was not cleared to
access it. The failure at that point to notify the proper authority and
transfer the material back is evidence of willful and unlawful retention.
Hur downplays that in the report, but not in terms of its evidentiary
value but because he believes that Biden's cognition was impaired at that
time too -- or at least the defense would be able to argue it well enough
to provide reasonable doubt to a jury.

That was Hur's argument in essence on Biden's forgetful-old-dotard
appearance. That was the surprise, not the violations themselves, which
were patently obvious from the time the records were seized. And let's
just remember that if a lesser official had done what Biden or Trump did,
they'd have already been prosecuted for it. Just ask David Petraeus, whose
crime also involved a biographer, among other more salacious differences,
and who got a $40,000 fine and two years probation while pleading guilty
to violating the law protecting classified material.

Update: Via Axios' Alex Thompson, here's CNN legal analyst Elie Honig
making essentially the same point in yesterday's NY Magazine. It's
paywalled, but here's the key excerpt:

Click to fully expand the excerpt. All of the elements of the crime are
present. The only reason why a prosecutor wouldn't press the case is
because Biden would employ the dementia defense, and Hur thinks that would
be a winner. For obvious reasons.
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