The Daily - What Biden Miscalculated About His Classified Documents

Episode Date: January 24, 2023

Over the weekend, F.B.I. agents found classified documents at President Biden’s residence in Wilmington, Del., after conducting a 13-hour search.The search — at the invitation of Mr. Biden’s lawyers — resulted in the latest in a series of discoveries that has already led to a special counsel investigation.What miscalculations have Mr. Biden and his team make throughout this ordeal?Guest: Michael D. Shear, a White House correspondent for The New York Times.Background reading: Inside the decision by Mr. 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.Investigators for the Justice Department recently seized more than a half-dozen documents, some of them classified, at the president’s residence in Delaware.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Michael Barbaro. This is The Daily. Today. For the fifth time, classified documents belonging to President Biden have been found outside of a secure government location, this time by FBI agents searching his home. This time by FBI agents searching his home. My colleague, Mike Scheer, has been trying to understand how Biden chose to handle those discoveries since they began. And why, for so long, he left the public in the dark. It's Tuesday, January 24th.

Mike, I want to start with what happened over this past weekend in Wilmington, Delaware. Tell us about that. Yes, it was really quite remarkable, actually. The unprecedented FBI search of a sitting president's home for classified documents, escalating the legal and political situation for President Biden. You had the scene of the FBI and a bunch of agents at the invitation of President Biden's personal lawyers. We found out about this on Saturday.

FBI agents spent nearly 13 hours scouring his Delaware home on Friday. Conducting what ended up being a 13-hour search of his personal home in Wilmington, Delaware. Investigators reviewed personally handwritten notes, files, papers, binders, memorabilia, to-do lists, schedules, and reminders going back decades. Literally combing through every nook and cranny in every room and office and garage and closet looking for any indication of additional classified documents that might have been there improperly. And in fact, they did find them. Six items, they said, that included some classification markings. Some go back as far as his time in the Senate.

This drip, drip, drip just continues. And for those keeping count, this is now the fifth time in about, let's say, three months that classified documents have been found in President Biden's possession in places where they just shouldn't be. Right. Because where they should be are insecure government locations like the White House. So at this point, we've clearly reached a moment where the story of Biden and how he has handled classified documents has become something of a rolling public relations and legal mess for this president. Absolutely. And the amazing thing is what has ended up transpiring is exactly what they had

hoped to head off when they discussed how to handle the discovery of these documents at the very beginning of this situation. Well, Mike, I want you to explain that, because I know that you and a few of our colleagues have spent the past couple of days trying to both piece that together and understand it, the calculations made by President Biden and those around him about the best way to approach a very bad situation, which is classified documents found

where they shouldn't be in his orbit. So tell us about that. Right. So there's been a lot of reporting about this over the last couple of weeks. What we had decided was that we would look at a very specific period of time as this has all developed. And that is what we found to be the 68 days between when the first set of documents were discovered in early November of last year

and when the White House finally told the public about it in early January. And in essence, what we found was that the president and a very, very small circle of legal and political advisors had decided that they could settle the matter quickly and quietly if they were super cooperative with the Department of Justice at every turn, answer every question the investigators might want, really everything they could do to stand in contrast to the way former President Trump had handled a similar investigation into classified documents found at his home in Mar-a-Lago. The former president and his lawyers initially resisted efforts by the Justice Department to look into it.

They refused to allow searches of the house, which then led to a raid of his property and subpoenas. And so what the Biden administration thought was if they did the opposite, they cooperate fully with the department, hopefully would avoid a big, sprawling public investigation. Ultimately, they would not have to disclose anything to the public because ultimately they hoped it would just go away.

And of course, that's not what happened. Fascinating. So the thinking here from within the Biden world is that with this Trump classified document investigation playing out in a parallel universe, they would do everything differently in a legal sense and thus not have to tell the public pretty much anything. And it would all just work out. Right. But it turned out that they committed a series of miscalculations. They miscalculated how many documents would ultimately be found. They miscalculated the way the Department of Justice would respond. And ultimately, they miscalculated the way in which people would see President Biden's handling of documents versus President Trump's.

So, Mike, let's talk through what this strategy has looked like in practice from day one and how we arrive at those miscalculations that you just summarized. Right. So it all starts on November 2nd. That's six days before the midterm elections, very important for President Biden. That's when members of the president's team are cleaning out an office in Washington at this think tank that he had worked at before becoming president and had essentially been untouched for a couple of years now. They're cleaning that out. They find a handful of classified documents. They did

immediately send the documents to the National Archives, which keeps these kinds of government papers. The National Archives informed the Department of Justice. But it wasn't until about November 9th or 10th that the Justice Department then gets back in touch with the president's lawyers, says, hey, we are now looking into this. And that is when the president and this very small group of aides had to make a decision. What are we going to do? And the decision was, we're going to completely cooperate, but we're going to be quiet. We are not going to make anything about this public.

make anything about this public. Right. And this is probably the biggest of these early moments, because when the Department of Justice tells the president that it's looking into something, essentially, that it's investigating the president's conduct, that is, in theory, a very natural moment to tell the public. Yeah, a natural moment to tell the public and something pretty significant, especially in the light of the investigation that was going on to his predecessor, right? So it's hard to imagine that at that moment, they didn't at least have a sense of the importance that this could be. Right. So how have you come to understand the logic of Biden and his tight circle of advisors deciding not to tell the public that the Department of Justice is now investigating its handling of these classified documents.

So their explanation now of those early decisions was that they essentially were trying to follow scrupulously all of the rules that the Justice Department usually has about ongoing investigations, which is to say not to talk about them. But there was also a second reason, because they thought that if they went public and tried to explain what had happened and the president's actions, folks at the Justice Department would see that as potentially being an attempt to unduly influence the course of this investigation. Because, of course, the president is the attorney general's boss. And anything that he says publicly could be seen as an attempt to put his thumb on the scales of justice. Got it.

So they're saying our hands are tied. And from what you're saying, that makes a certain amount of sense, at least in the beginning. Right. I mean, it does to a degree. I mean, there is no question that Department of Justice prefers to do these kinds of investigations quietly. It makes it easier to find the right people to talk to. They don't have to compete with the swirl of news every day. the right people to talk to. They don't have to compete with the swirl of news every day. But at the end of the day, the White House had to make that decision themselves. Are they going to inform the public? Because it's ultimately a public relations call to make, and that was the one they made, to stay silent. Right, because you're saying there's nothing that prevents the White House from coming out from someone standing at a podium in the White House briefing room and

saying, we have something to announce. We found documents. The Department of Justice is looking at them. We don't have a whole lot more to say. Sorry, it might pollute an investigation. But we owe you this information, so you're welcome. Right. They could have done that in November, and they chose not to. Okay, so once they choose this strategy of cooperate but stay silent, what's the next big moment? So the next moment comes just before Christmas on December 20th.

The president's lawyers, having hoped that the Justice Department would say, hey, we finished our inquiry. This is nothing. We're going to go away. And that hasn't happened. The Justice Department is still looking into the case. And the president's lawyers decide, you know what, it's probably time to search other places that documents might be, including the president's homes, one in Wilmington, Delaware, and one in Rehoboth Beach, Delaware. And so the president's

lawyers go ahead, they search both places, and they do find some documents in Wilmington at the president's home. But the president and those same aides decide, we're going to continue with our strategy. Cooperation and silence. We're not going to tell the public. In other words, they do tell the Justice Department, hey, we found a lot more documents in this house in Wilmington, Delaware. But they do not tell us that fact. Right, exactly. And you have a situation now where whether they sort of realized it in full or not, they were clearly playing with fire at this point because, you know, the Justice Department clearly wasn't going away. It was continuing to examine and look into this. And so the decision that they

made originally in November and now we're sticking to in December was becoming riskier and riskier. Mike, at this point, because you are trying to reconstruct this period, does anyone inside the White House go to this small group of advisors and say, you know, it's probably time to tell the public what's going on? Sure, there's a risk of having some influence on the DOJ, but if we craft the right message and we're careful, we can do it and we will avoid the allegation that we were trying to hide this. Well, so we don't have a real clear picture about who said what during that period. But what we do know is that much of the White House was cut out of even knowing what was going on at that point.

So the broader kind of White House public relations machine that we all know, the communication staff, the press secretary and her staff, nobody knew what was going on at this point. And so there was much less opportunity for that kind of full debate about what should be done and what they should say. And that ultimately comes back to be a problem for them when on January 9th, CBS News has learned that classified documents, CBS News reports, were discovered at the Penn Biden Center. On the initial discovery back in November, early November, at the think tank of classified documents being improperly handled and in the president's possession. The White House at that moment does confirm that report from CBS, but the White House confirms only the narrow report from CBS about that initial discovery of documents in November. discovery of documents in November. Despite the fact that the White House clearly at that point knew about the documents that were discovered in December, they don't tell the public about it.

They continue to hold back facts and hold on to this strategy of not being fully transparent. I just want to zero in on that because it feels really important. The media has come to the Biden administration and said, we know about an initial batch of classified documents discovered in November. And instead of coming clean with the true scale of the issue here as relates to classified documents, which is we didn't just discover one batch, we discovered two, and the Department of Justice is looking into this. It's gotten serious. The Biden administration keeps all that secret still and just confirms the narrow reporting about November 2nd documents. Yes, that's exactly right. And in some ways, they were still clinging to this strategy

that we described earlier about not upsetting the Department of Justice, but they were also, earlier about not upsetting the Department of Justice, but they were also, they seemed intent on trying to keep a lid on what was clearly becoming a burgeoning scandal, which, as anyone knows who's worked in Washington for any period of time, is not likely to be the case, right? These things come out. You can't stop these things from becoming a big media story. And yet they tried. Right. And here again, we're looking at what seems like a miscalculation because it's not just that these stories always come out, like you said, Mike.

It's that when they come out and people learn that you withheld them, the judgments become even harsher. Right. And in this case, the 68 days of silence has not worked out the way they'd hoped. We'll be right back.

So, Mike, once this 68-day approach of trying to keep the public in the dark comes to an end with this CBS report, what happens next? Well, so everything that the president and the top aides around him had hoped wouldn't happen. Well, that happens pretty quickly. So a few days later on January 11th, there are more news reports that leak out, this time about the discovery of that second trove of documents back in December. Huge embarrassment for the Biden administration. Makes them look like what they had done, which was hold back information. Then the following day, January 12th, the Department of Justice comes out.

Attorney General Merrick Garland says, look, we've been investigating President Biden and these documents, but now we're going to be appointing a special counsel to look into this. It's a much more formal investigation to what happened. It's a move that is often done when the attorney general feels like there's so much politics swirling around a case like this that you need somebody much more independent to conduct the investigation. Right. And this is clearly the moment where all the calculations, Mike, that you have been describing that Biden and those around him made really seem to kind of fall apart because

the logic of it always was if we handle this differently than Trump, then it will create a very different outcome than in the Trump investigation. But of course, when the Department of Justice appoints a special counsel, in many ways, it's starting to feel like the exact same level of seriousness that it's been bringing to the Trump investigation because there is a special counsel for that one as well. That's exactly right. The president and his team misunderstood how seriously the Department of Justice would take a case like this. calculated that there would ever be a world in which the Department of Justice could just look the other way in Biden's case while simultaneously investigating President Trump. In some ways, the Trump investigation actually necessitates that the Department of Justice

take the Biden investigation as seriously and with as much force. Yes. And from there, things got even worse for President Biden. A couple of days later, on January 14th, the lawyers for the president found even more documents during a search of the president's library, just adding to both the substantive total number of documents that had been found and to the sense of a kind of drip, drip, drip in which the president and his team don't look like they're

being forthcoming. And shortly after that, we have the FBI search of Biden's house in Wilmington that you described at the start of our conversation, Mike, which turns up even more classified documents. So at this point, how many documents are we talking about? And can we say much about the nature of them and the classifications they involve? say much about the nature of them and the classifications they involve. Yeah, much of that remains opaque at this point. We don't know details about what the documents actually are, why they are classified, what level of classification that have been stamped on them. The president's personal lawyer said over the weekend that investigators had seized six more items on Friday in that 13-hour search. But how many pages is an item, whether that could be a box of

documents or a single document, that still is unclear to us. And I think we're still working to better understand the number of documents and what's in them. Right. And I'm guessing the answer may be we don't know yet, but do we have any sense of how what Biden was found to have kept in his homes and offices compares with what the FBI found at Mar-a-Lago. So we know that there were many fewer documents found in President Biden's possession than there were down at Mar-a-Lago in President Trump's possession. We don't have a lot of information about the difference in terms of classification level, we do know that in the case of President Biden, many of the documents date back many years.

They were from his time as vice president, and in some cases, even his time as a senator before that. Whereas in the case of President Trump, documents were obviously from his presidency, which were much more recent. So what we can say with confidence is that the Biden classified documents are fewer and they are older.

Right. You know, but in the end, no matter what level of classification and no matter how old they are, they're documents that should be handled properly and are going to be important to the Justice Department no matter what. Right.

You know, it strikes me that in the end, the Biden White House did execute on this strategy very faithfully. I mean, they did cooperate seemingly at every turn with the Department of Justice, and they did, for those 68 days, keep all this information from the public. And so I wonder how the people in Biden's inner circle now think about that strategy, given where we are and how it all looks today. I mean, look, the folks that we've talked to inside the White House discuss this as a sort of long-term versus short-term strategy. Yes, in the immediate days and weeks, fingers are being pointed, a lot of media

attention being paid to this in a way they would obviously have preferred to avoid. But they argue that in the long run, it will be proven out to have been the right move, both in terms of preventing the president from getting into any serious legal jeopardy, which they insist that he won't be because of how cooperative he's been. And they think that drawing the sharpest distinction they could with how former President Donald Trump handled it will ultimately end up to be a really good PR move as well. In the long run, again, you know, at the end of this saga of both presidents and their handling of documents, they, I think, fully believe that they will be seen as having made the proper choices to cooperate, even if that meant that they took a PR hit, whereas the former president, Mr. Trump, will have been seen to be taking a different path. And potentially taking a very different kind of hit at the end of this DOJ investigation.

Right, exactly. taking a very different kind of hit at the end of this DOJ investigation. Right, exactly. I'm curious, Mike, is this how you see it as a longtime White House reporter, as a strategy with a short-term pain, long-term gain kind of ratio? I mean, I think that we'll have to see where this all ends up. where this all ends up. I think that what it does reveal about this White House is how they see themselves. The president sees himself as one of the good guys, coming into office after President Trump.

And I think ultimately that sense of self governs how President Biden and his top aides, how they behave and how they behaved in this case. You know, I think they really thought that given that view of themselves, that the Justice Department, the investigators, ultimately the public, when they found out, we're going to essentially shrug and say, you know, this is a kind of minor infraction, a minor incident, and let's move on. And ultimately, that was not what happened. Well, Mike, thank you very much. Happy to do it. We'll be right back.

Here's what else you need to know today. The death toll from the mass shooting in Monterey Park, California, rose to 11 on Monday as police began releasing the identities of those who were killed. Many of the victims were in their 60s and 70s and were shot as they participated in an event at a popular ballroom dance hall, the first of two venues that the gunman tried to attack. I needed to get the weapon away from him. I needed to take this weapon, disarm him, or else everybody would have died. On Monday, a 26-year-old employee at the second dance hall described how he confronted the suspected shooter moments after he entered the building

and prevented further bloodshed. When I got the courage, I lunged at him with both my hands, grabbed the weapon, and we had a struggle. We struggled into the lobby, trying to get this gun away from each other. Finally, at one point, I was able to pull the gun away from him. Police say that the shooter's motive remains unclear. Meanwhile, seven people were killed in San Mateo County on Monday in yet another mass shooting in California. Police said the suspect in that shooting is now in custody.

Today's episode was produced by Claire Tennesketter, Nina Feldman, and Mary Wilson. It was edited by MJ Davis-Lynn, contains original music from Marian Lozano and Dan Powell, and was engineered by Chris Wood. Our theme music is by Jim Grunberg and Ben Lansford of Winderle. That's it for The Daily.

I'm Michael Bilboro. See you tomorrow.