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Joe Biden’s elaborate game of hide-and-seek over his suspected theft of highly classified government documents may finally be coming to an end.
The Department of Justice announced, "Ready or not, here I come!" So, the former president scampered to a federal court on Tuesday, begging for protection to prevent the public release of audio recordings and transcripts in which he is known to have incriminated himself.
Asking a judge to effectively cover up evidence of crimes — whether charged or not — is a fanciful proposition.
The recordings were obtained lawfully in 2023 by then-special counsel Robert Hur. Hence, Biden can no longer legitimately claim a Fourth Amendment privacy interest in them. Once they entered the public and prosecutorial domain, they were stripped of privacy protections.
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Yet, that is Biden’s argument. He is suing the DOJ to stop it from handing over the recordings to Congress and the Heritage Foundation, which long ago sought the tapes pursuant to the Freedom of Information Act.
The facts established by Hur’s investigation show that Biden kept (or stole) troves of classified documents when he was a U.S. senator and, later, vice president. They were stored in his home, garage and office at the Penn Biden Center. These were unsecured and unauthorized places, in violation of the Espionage Act (18 U.S.C. 793-798). His actions seriously jeopardized national security.
Even worse, Biden is heard on the recordings sharing classified information with his ghostwriter, Mark Zwonitzer, also in violation of the act. The author held no security clearance whatsoever. All of this is confirmed in Hur’s 345-page report issued in 2024.
BIDEN ADMITS KEEPING CLASSIFIED AFGHANISTAN DOCUMENT 'FOR POSTERITY'S SAKE' IN LEAKED AUDIO
On page one of that report, Biden’s criminal culpability was laid bare:
"Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen. These materials included (1) marked classified documents about military and foreign policy in Afghanistan, and (2) notebooks containing Mr. Biden’s handwritten entries about issues of national security and foreign policy implicating sensitive intelligence sources and methods."
Why did Biden take and keep top-secret records and convert them to his own use? As Hur explained in his report, "Biden has long seen himself as a historic figure… He used these materials to write memoirs published in 2007 and 2017, to document his legacy, and to cite as evidence that he was a man of presidential timber."
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In other words, hubris is what drove Biden to ignore the law with impunity. He knowingly treated confidential government documents as his own personal possessions. When interviewed by Hur, Biden kept referring to them as "my property," as if strict federal statutes to the contrary did not apply to him.
Biden should have been charged with numerous offenses arising from the Espionage Act, which makes it a crime to willfully retain or transmit classified documents. There is also a lesser standard of "gross negligence." To conform with DOJ policy, the charges could have been held in abeyance until he left office. But none of that happened.
Audio from then-President Biden's interview with special counsel Robert Hur reveals that he, and not the special counsel, brought up Beau Biden's death. (Getty Images)
Why was Biden spared? The most obvious explanation was his perceived senility. This was infamously noted by Hur when he wrote that the then-sitting president was "a sympathetic, well-meaning, elderly man with a poor memory." The special counsel surmised that Biden did not possess the capacity required for "a mental state of willfulness." This conveniently overlooked the gross negligence standard.
Hur also offered up a soufflé of other vacuous excuses, most of which focused on Biden’s diminished mental acuity. At one point, the prosecutor even ventured that absconding with numerous boxes and notebooks of classified documents was merely "an innocent mistake." That, of course, contradicts Hur’s own explanation that Biden yearned to memorialize his place in history by confiscating the material.
The more likely truth behind the soft treatment of Biden is that his own Justice Department was investigating its boss. Declining to bring charges reeked of favoritism mixed with a corrupt cover-up.
How else to explain the inane paradox of a man who is supposedly incompetent to stand trial but perfectly competent to remain president of the United States? And, at the time, run for another four-year term?
Juxtapose the harsh treatment of Donald Trump when he left office and, like Biden, was also a private citizen when he retained documents that were allegedly classified. Despite cooperating with DOJ and FBI inquiries, Trump’s home at Mar-a-Lago was raided and a criminal indictment followed.
Former President Joe Biden speaks at the Department of Labor on December 16, 2024 in Washington, D.C. (Kevin Dietsch/Getty Images)
The Presidential Records Act permitted Trump to retain classified material. Indeed, this was the long-held position of the Justice Department until it suddenly reversed itself in the Trump case. Biden, however, could not avail himself of the same Presidential Records Act defense, inasmuch as many of his classified records dated back to his service as a senator.
In Hur’s report, he noted that "after leaving office, many former presidents and vice presidents have knowingly taken home sensitive materials related to national security from their administrations without being charged with crimes." Yet, Trump was charged and Biden wasn’t. The inconsistent and unfair administration of justice is what many Americans have come to resent. There are rules for Trump — and rules for everyone else.
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This biased and discriminatory principle is what Biden now intends to take advantage of in court. He wants to conceal from the public and Congress the incriminating evidence in which, according to Hur, he openly admits to his ghostwriter that he squirreled away top-secret records and then reads from them verbatim.
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The writer deleted his digital audio recordings but was later granted immunity. The erasures were subsequently recovered from his computer and hard drive. All the while, Biden kept telling reporters that he never once shared classified information.
Biden’s deliberate deceptions are reason enough to now make those tapes public. Americans have a right to know the truth and to conclude for themselves whether their president was lying. They are entitled to listen to the recordings or simply read the transcripts. Some redacted transcripts have already been released. But all of the material should be made available.
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As a public figure who held the highest office in the land, Joe Biden’s privacy rights are circumscribed. The recordings that he seeks to suppress contain evidence that he mishandled classified information.
Their release serves the paramount public interest. They are in no way personal, private records.
CLICK HERE TO READ MORE FROM GREGG JARRETT
Gregg Jarrett is a Fox News legal analyst and commentator, and formerly worked as a defense attorney and adjunct law professor. His recent book, "The Trial of the Century," about the famous "Scopes Monkey Trial" is available in bookstores nationwide or can be ordered online at the Simon & Schuster website. Jarrett’s latest book, "The Constitution of the United States and Other Patriotic Documents," was published by Broadside Books, a division of HarperCollins on November 14, 2023. Gregg is the author of the No. 1 New York Times best-selling book "The Russia Hoax: The Illicit Scheme to Clear Hillary Clinton and Frame Donald Trump." His follow-up book was also a New York Times bestseller, "Witch Hunt: The Story of the Greatest Mass Delusion in American Political History."
