Biden’s ‘inadvertence’ excuse: The president is still short of a complete defense

This weekend, President Biden returned to his home in Delaware. While some view the home as a veritable crime scene, the White House insists it is merely an area of liberating “inadvertence.” You will find no chalked outline of boxes of classified documents or yellow police tape in Wilmington. You will also not find another expected element: a viable criminal defense.

After classified documents were found in various locations, the Justice Department launched an investigation that could take months. However, Biden’s private counsel, Richard Sauber, surprisingly announced that they already know what happened and it was a case of “inadvertent mishandling.”

What is striking about the “inadvertence” defense is what is not being claimed. A better defense is that the president had no role in or knowledge of the removal of the documents. It is always possible that documents are packed without the knowledge of a departing president or vice president. Yet, documents removed at the end of a term are generally archived as requested and packed by staff. There should be a chain of custody.

While premature and incomplete, ‘inadvertence’ is still a better defense than the one offered by Rep. Hank Johnson (D-Ga.) and others who suggested the classified documents may have been “planted.”

The president’s counsel thankfully did not opt for that conspiracy theory. Indeed, they have admitted the material was classified and held in unsecured locations. It is a curious defense, however, since it is not an actual defense for this crime. Rather, it is more of a mitigating factor to influence charging or sentencing. In this case, Biden must be hoping that prosecutors will not bring a charge absent some showing of evil intent.

The “inadvertent mishandling” is as viable a criminal defense as Bill Clinton’s claim that he smoked marijuana but “didn’t inhale.” It is designed to suggest that, while the act may violate the law, the conduct is excusable. For Biden, the argument appears to be, “Yes, I removed the documents, but I didn’t use them.”

The White House mantra has locked Biden into a non-defense defense. Since federal law bars gross mishandling of classified material, it is not enough to say you lacked evil intent.

Just ask Asia Janay Lavarello, who was sentenced last February for taking classified documents at just the “secret” level to her hotel room in Manila. Lavarello was working at the U.S. Embassy there and took some doctoral theses of other employees to work on her own. She had a party in the room, during which someone noticed the documents. She was given three months in jail.

Prosecutors often look for evidence of intent, particularly if they are thinking of indicting a president or former president for the first time in history. Clearly Lavarello knew she was taking the documents. The age-old question remains what the president knew and when he knew it.

Such intent by Biden could be established not only at the time the documents were removed but also during his years-long possession. Even if he was unaware of the removal of the documents, subsequent knowledge would still constitute the most serious level of violation under federal law. Knowledge also can be established by third parties who retrieved or discussed the documents with him.

One possible explanation, which I raised earlier, is that the documents might have been relevant to Biden’s work on his book, which dealt with subjects like Ukraine.

The greater problem with Biden’s defense is that it began to unravel even as it was being offered by the White House.

The record establishes that these documents were not just “inadvertently mishandled” — at best, they had to be repeatedly inadvertently mishandled. The documents had to have been moved repeatedly, since the Washington office with the Penn Biden Center (where the greatest number of files apparently were found) did not open until 2018. They also were distributed between three different locations.

As the number of moves increase, the plausibility of inadvertence decreases. Moreover, each move exposed these documents to movers, staff and others who could have come into contact with the boxes.

Biden’s response to the discovery is potentially damaging, too. On Nov. 2, his counsel reported to the National Archives that highly classified documents were found in a closet at the Penn Biden Center office. This find reportedly included Top Secret/Sensitive Compartmented Information, known as TS/SCI.

So, on Nov. 2, the president seemingly was aware that highly classified material may be among his papers. Yet he still had private counsel — who may lack the proper security clearance — to search for more. Indeed, the president did not know what level of clearance would be required for any additional documents.

This use of private counsel would be more understandable for a former president or former vice president, but Biden is the current president. He has a host of security officers and others with clearances who can properly handle classified materials. He could have asked any of those personnel to conduct the search but, instead, used his own private counsel. This is not using government personnel for private purposes, since he was trying to retrieve unlawfully possessed government documents.

Biden’s private counsel found a second batch of classified material. Even then, the president apparently continued to use outside lawyers rather than the FBI or White House staff for additional searches. That led to a third discovery of classified material … by private counsel.

During all of these searches, Biden did not know where documents might be found, their level of classification, or the risk of unlawful access. That might also be viewed as gross mishandling. It was an inadvertent but a conscious decision to retain control of the search at the risk of further unauthorized disclosures.

In fairness, the FBI allowed time for Trump’s personal team to confirm any classified material. However, the Mar-a-Lago storage area was not only reinforced with additional locks at the FBI’s request, but the area was guarded by the Secret Service and had video surveillance. In contrast, by his own account, Biden had no idea what additional classified material was in his possession or where it had been left.

Biden has claimed he was “surprised to learn that any government documents were taken.” That is a strange statement, since the president clearly was aware that government documents were removed for his use after his term as vice president.

Even if we assume Biden meant “classified government documents,” it is a statement that could come back to haunt him if a witness establishes that he requested any of the classified documents or worked off them. For example, at least one classified document appears to have been removed from the other batches and taken into his personal library. If he or anyone working on his book dealt with clearly marked classified documents, his “inadvertence” claims could look like a post-hoc effort to deceive the public and investigators.

None of this means the cases of Biden and Trump are the same — but they are not “apples and oranges,” as claimed by some press and pundits. They are both apples, just different varieties. If two people rob a bank but one also steals a getaway car, they are both bank robbers, but their cases are different.

The key issue is not whether they are different but whether either has a defense.

Jonathan Turley is the Shapiro Professor of Public Interest Law at The George Washington University. Follow him on Twitter @JonathanTurley.