Basic Problems with Coverage of the Hur Report: A Response to Wittes and Gluck

Editor’s Note: Bob Bauer is counsel to President Joe Biden. 

In their Lawfare piece published on Feb. 13, Benjamin Wittes and Matt Gluck agree that Special Counsel Robert Hur rightly cleared President Biden of criminal wrongdoing in the classified document investigation. So, if I agree with Wittes and Gluck that Hur fulfilled his mandate in determining, on the law and the facts, that there was no criminal wrongdoing, then why am I here, offering a critical response?

I am moved to respond because, beyond the bottom-line legal conclusion, Wittes and Gluck surprisingly follow in the path of a fair amount of the flawed coverage of the case. While I respect the co-authors and their wish to give a balanced perspective on the Hur report, I find that their assessment veers way off course.

The co-authors insist that after a 15-month investigation, the clear resolution in the president’s favor is not a “vindication,” though “vindication” is normally how one describes a serious allegation that is disproven. They see “immense” differences between this case and the indictment pending against Donald Trump, only to shift to reverse with the remarkable and untenable assertion that “with respect to [Trump’s and Biden’s] underlying behavior, [the cases are] actually not all that different.” 

I will keep this reasonably short and lay out the principal problems as follows: First, they do not always get the facts right. And second, their analysis skips over or fails to engage with the law where it answers the very concerns they raise.

The Facts

The Amount of Material 

No one suggests that we should not care about even a single classified government document finding its way to an unauthorized location. But precision and a sense of proportion are important.

The authors cite more than once the “significant volume of classified material” from “Biden’s vice presidency and his years in the Senate [that] ended up in his home and in the offices of the Penn Biden Center in Washington.” They count in the special counsel’s report a total of “75 classified documents.” This is hype and, on a few points, inaccurate.

It is hype because over the course of his Senate career and vice presidency, the president was provided with a vast quantity of classified documents—likely hundreds of thousands of items—and the documents found in these locations represent only a miniscule fraction. Thirty-three documents date from his Senate days, most of which go back to the 1970s and 1980s, and a number of which Hur could not conclude were classified. Hur acknowledges in his report that he was “limited in our ability to investigate these documents because of the significant passage of time since their creation.”

The authors’ tally of the vice-presidential-era documents suffers from similar flaws. As Appendix A to the report makes clear, certain of those documents were duplicates listed as multiple documents, attachments are counted separately from the parent memo, and individual pages of a single PowerPoint were counted as separate “documents.” The report also concedes that there would be a “strong[] challenge” to whether the Afghanistan documents contained national defense information because they “are now almost fifteen years old” and “concern a conflict that is now over, in a country where there are no longer any American troops, about a subject (the 2009 troop surge) that has already been widely discussed in books and media reports.” And, in any event, and for lack of evidence to the contrary, the report did not refute the conclusion that the president had no hand in packing these materials during the 2016-2017 transition.

The hype is aggravated by a misstatement of a comment the president made during a meeting with his writing assistant. The president was not recorded as saying that he had found “a lot” of classified material in his basement. Furthermore, the report notes that when the president said, “I just found all the classified stuff downstairs,” he “was discussing a handwritten memo he had sent to President Obama opposing the deployment of more troops to Afghanistan in 2009.” The report does not suggest that President Biden ever showed any classified government documents to his writing assistant—and there is not even any suggestion that the president showed him that handwritten memo.

The Clinton and Petraeus Cases

Wittes and Gluck opine that “Biden’s probable conduct is objectively worse than [Secretary Hillary] Clinton’s” and “bears some similarity to that of [Gen. David Petraeus].” Where, I have to ask, does this come from?

I do not believe Clinton violated the law, and I have written on this site highly critical assessments of the Department of Justice’s handling of the matter, to her detriment, in July and October 2016. But the Biden case is not “objectively worse”: It is fundamentally different. One case involved the novel question of a cabinet official’s installation of a private server for the conduct of official email traffic. The other is yet another in a long line of instances, never before requiring a 15-month investigation, of packing errors in a transition and presidents and vice presidents keeping their personal diaries.

The Petraeus case bears no similarity at all, not just “some,” to the Biden case. Even Hur described the Petraeus case as significantly different. Wittes and Gluck temper their view of “some similarity” by acknowledging that Petraeus’s conduct was “clearly worse.” This is not nearly tempering enough: The conduct is not only “clearly worse” but worlds apart.

As a condition of employment and then upon leaving the government, Petraeus signed multiple nondisclosure agreements, which are not required of presidents and vice presidents. These included his attestations that “given access to information or material that is classified [and] that, if disclosed in an unauthorized manner would jeopardize intelligence activities of the United States Government,”  he was “obligated to protect the information and/or material from unauthorized disclosure.”  Yet he delivered notebooks containing classified material to a biographer, with whom he was having an affair, for her unrestricted use for a period of days at a private residence in Washington, D.C.  After resigning from the government and attesting, as required, that “I give my assurance that there is no classified material in my possession, custody, or control at this time,” he continued to retain the notebooks at his personal residence. And then he lied to the FBI about his conduct.

Wittes and Gluck push through all this to the following suggestion of “similarity”: “Biden’s behavior appears to have involved the sharing of classified material from the notebooks for reasons of personal promotion.” The fundamental problems with this are that, first, as the report acknowledges, Biden never provided the notebooks to the writing assistant and he read out loud two—that is, two—passages from his notebooks that Hur found to have contained classified information; and second, the reference to “personal promotion” is not a particularly charitable characterization of a book about deep personal loss—a book that did not contain any classified material. And, of course, far from obstructing the investigation, President Biden provided unprecedented cooperation in support of it. 

The Trump and Biden Cases

I will not comment on the pending case against President Trump. Yet, what is the conceivable basis for suggesting that the Trump and Biden cases were similar “with respect to the underlying behavior”? Even Hur did not think so: He said the opposite. As Wittes and Gluck concede, the “Trump case was at bottom an obstruction case”; the Biden case was not, and indeed it featured exemplary, thoroughgoing cooperation by President Biden, from the self-reporting of the discovery of the documents, to sitting for an interview, and still more throughout the inquiry.

Once again, while accepting that the differences between the cases are “huge,” Wittes and Gluck fuzz them up with references to a similarity based on the “volume of significant material, the storage at unsecured facilities … and classified material … shared with individuals for reasons of personal promotion.” I addressed above the claim about the “significance of the volume” in this case and note only that, in contrast, the Trump indictment alleges hundreds of classified documents willfully retained from his four years in office. And the reference to unsecured “storage” elides the difference between the storage of documents in locations like a social club, and the keeping of notebooks (about which more below) at a personal residence, which is where personal diaries are normally found. About “personal promotion,” I do not have much more to say, but it is fair to doubt the equivalence here between an alleged wish to retain government documents for display to others for fame and glory and who-knows-what-else, and the use of personal notebooks to write a book about the loss of a child in which no classified information appears.

Following the Rules 

Wittes and Gluck find the Hur report account of Biden’s behavior “upsetting” and challenge any attempt “[t]o dismiss such behavior” as “a disservice to the countless individuals who actually follow the rules and don’t keep at home highly classified information they believe vindicate their policy arguments, or use such materials to write memoirs and read it aloud to their ghost writers.”

This is misleading. It is not a fair statement of the now-known facts, and it omits the key law on presidential records.

First, the report concludes that the president did not willfully retain “highly classified” “government documents to vindicate his policy arguments.” In that respect, President Biden is among the countless individuals in the federal government who have endeavored over the years to follow the rules, and the mistakes that occurred are not unusual in the history of presidential and other government records. 

And, as discussed below, the law expressly permits presidents and vice presidents to keep their personal notes and notebooks, even if they contain classified information. In this respect, presidents and vice presidents, as constitutional officers, are not like all other government officials and personnel, which is a reflection of our constitutional system and long-standing features of our laws.

The Law 

The Wittes and Gluck account makes short shrift of the law. The president did not simply claim that the notebooks were his personal property based on “a long history” of such claims: They are his, by law, which is clear on the point. Congress made the specific decision in the Presidential Records Act to trim back the presidents’ long-standing and legally sanctioned claim to keep all their papers, but still authorized, in express terms, their continued retention of their diaries. “Personal notes,” “diaries,” and “journals”: These words are all right there, in the statute, treated as personal records. And, both historically and at the relevant time, executive branch legal guidance across administrations has made clear that “rough meeting notes” are also not presidential records.

So, the notebooks are his, by law, and not by some free-floating claim of right. And as for the matter of classified information among these handwritten notes, the Department of Justice recognized in litigation as long as ago as 1989 that a president’s personal notes—in that instance, President Reagan’s diaries— will inevitably contain classified information, inasmuch as these constitutional officers taking notes on consequential matters will be predictably recording briefings and conversations of a highly sensitive nature on foreign policy and national security.

The special counsel investigation was not an inspector general investigation: It was a legal investigation and had to come to terms with what the law allowed and disallowed. The argument can go from there, about whether the law needs to be revisited. However, president after president, and vice presidents, have retained notes and notebooks (or, in Bill Clinton’s case, recorded conversations with a writer), and they have used these materials to write memoirs of their times in office. It was not only Ronald Reagan who did so.  Reagan’s vice president, George H.W. Bush, also maintained diaries, as did others before him—all the way back to George Washington.

In this respect, wide berths have been afforded presidents and vice presidents in their constitutional roles that are not available to others in government. As previously noted, they are not required to sign, as do other officials, nondisclosure agreements. Nor are they obligated, as are others in the executive branch, to enter into agreements to submit for pre-publication classification review any memoirs or other writing after their time in office . Many of the laws and regulations related to the handling and treatment of classified information apply differently, or not at all, to these two constitutional officers.

It is not, then, only a matter of a “long history,” cited by Wittes and Gluck, that carves out the space for our highest constitutional officers  to do what others in government may not. It is a history that is reflected in law and its application over many decades. This law is missing from the Wittes and Gluck account. It seems that it should have more space in an appraisal of a criminal investigation.

* * *

Wittes and Gluck give free rein to characterizations of the president’s conduct that are entirely their choice to make—such as “upsetting,” “arrogant,” “reckless,” and “completely” unacceptable. And, while subjective, they are not comments of the kind for which the Hur report has become notorious, because the co-authors are entitled to lay out their personal views, in a way that Hur was not, if he was to comply with Department of Justice policy and norms. But these judgments can only mislead readers if they are sprinkled through a piece that I believe required more precision and clarity in laying out the actual law and facts of the case.

Then again, I am always grateful for Lawfare, where these kinds of exchanges routinely take place.