Regarding multiple discoveries of improperly stored classified documents from Joe Biden’s time as vice president, President Biden’s lawyers assert that they “quickly turned all the classified documents over to authorities and have cooperated fully with the appropriate government agencies.” As has already been noted, that level of cooperation distinguishes the Biden documents matter from the reportedly obstruction-laden fiasco involving hundreds of sensitive documents at former President Donald Trump’s properties. If Biden wants to make an even stronger contrast between himself and Trump, there’s yet another step to take: Consent to a search of his properties.
If Biden wants to make an even stronger contrast between himself and Trump, there’s yet another step to take: Consent to a search of his properties.
Special Counsel Robert Hur, who last week was appointed by Attorney General Merrick Garland to lead an investigation into the mishandling of classified documents by Biden, first needs to determine the scope of what he’s dealing with. That is, how many documents — and of what level of sensitivity — are in places they shouldn’t be? That question isn’t just necessary to determine whether someone committed a crime, but it’s also crucial for the intelligence community’s task of performing a damage assessment. That’s why it’s time for Hur to ask for consent to search Biden’s Wilmington, Delaware, home. In fact, Biden should make the offer even if Hur doesn’t first ask.
Hur and his assigned FBI agents should also seek consent to search the office and related storage space Biden used at the Penn Biden Center in Washington. That request could be trickier because it likely involves a landlord-tenant question of who could authorize the search, but it’s not insurmountable. Lastly, the special counsel should also request — and Biden should consent to — a search of any other properties or storage spaces, including his home in Rehoboth Beach, Delaware, even though there are no reports of documents at other locations.
While MAGA sycophants such as Rep. Jim Jordan, R-Ohio, and Donald Trump Jr. are demanding that the FBI execute a search warrant on Biden properties — as they did at Mar a Lago — nothing in this case appears to justify a judge issuing a search warrant. A judge only issues a search warrant after an assertion that a crime has occurred. While “mishandling” classified documents could constitute a crime, that statute requires that someone “knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location.” There’s no evidence, at least not yet, of criminal intent in the Biden matter. And without the belief that a crime was committed, the FBI would have no reason to seek a a warrant, and a judge would have no reason to approve one.
That’s why a consent search — so common in law enforcement that any FBI agent worth their salt carries consent to search forms in their car or briefcase — makes perfect sense. Once an agent establishes that an individual has control and authority over the property or space to be searched, the individual is asked to sign the form that advises them they have no obligation to consent and sets forth the scope of items to be searched for.
No one wants the FBI rummaging through their belongings. Yet, classified U.S. documents belong to the U.S. government, not to any individual. And while the far right won’t be satisfied with any level of cooperation by Biden and will likely describe it as Biden getting away with only a consent search, the reality is that a consent search serves not only as a damage assessment and a criminal inquiry, but it also helps Biden in the public arena. There’s nothing more transparent than having the FBI search through your underwear drawer.
It’s possible that a consent search could turn up even more documents. But, wouldn’t it be better if such a discovery occurred at Biden’s request as opposed to following an order from a federal judge? And, if the FBI and DOJ are going to take a beating for the falsehood that they are wrongly treating Biden differently than Trump, wouldn’t it be better for those institutions if they could explain that they conducted equally intrusive searches of both presidents?
The smart path for both the special counsel and Biden is clear. For the sake of transparency, national security, prosecutive determinations, institutional credibility and politics, a consent search is the way to go. All we need is a special counsel who will ask and a president who will answer, “Yes.”
