The Justice Department and intelligence community won’t weigh in on any damage assessment on President Joe Biden’s classified documents saga, despite both agencies repeatedly discussing the Mar-a-Lago risk review last year.
Biden’s personal attorneys said they first discovered classified documents in early November at the Penn Biden Center. Biden’s lawyers have since found more classified documents at Biden’s Wilmington home in December and January, and the DOJ found more when it conducted its own search Friday. The classified records date back to Biden’s days as senator and vice president.
The Office of the Director of National Intelligence declined to comment this week on whether it was conducting an intelligence assessment or risk review on the classified documents found at the Biden Center and at Biden’s Wilmington home, despite DNI Avril Haines confirming in late August that ODNI was conducting such an assessment related to the classified documents found in former President Donald Trump’s possession following the FBI raid of Mar-a-Lago in early August.
The DOJ had also repeatedly pointed to the “critically important” ODNI damage assessment of the Mar-a-Lago documents last year when fighting Trump in court. The DOJ has made no such statements related to any ODNI risk assessment on the Biden classified documents saga and did not respond to a request for comment this week.
Damage assessments by the intelligence community evaluate real or possible damage to national security posed by the unauthorized release of classified information. In the Trump and Biden cases, that would likely mean reviewing the classified documents to see whether any sources could have been compromised or sensitive technologies or operations could have been improperly accessed by someone without a need-to-know basis or by an adversary. Such reviews can be complicated and can often take a long time, but advocates say they are necessary for national security purposes.
Rep. Mike Turner (R-OH), the new chairman of the House Intelligence Committee, sent a Jan. 10 letter to Haines requesting “an immediate review and damage assessment following numerous reports that then Vice-President Biden removed, and then retained highly classified information at an undisclosed and unsecure non-government office in Washington, D.C., for a period of at least six years.”
“This discovery of classified information would put President Biden in potential violation of laws protecting national security, including the Espionage Act and Presidential Records Act,” Turner said. “Those entrusted with access to classified information have a duty and an obligation to protect it. This issue demands a full and thorough review.”
Senate Intelligence Committee Chairman Mark Warner (D-VA) also requested a briefing on Biden’s classified document controversy the same day, similar to how he had asked for but never received one last year related to the Mar-a-Lago raid.
Turner said he had not received a response from Haines as of Sunday.
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An ODNI spokesperson declined to comment on the existence of a risk or damage assessment related to the Biden classified documents. The ODNI also wouldn’t say when such an assessment may have begun — whether it was in early November when classified documents were first discovered at the Penn Biden Center or whether it was in January when the news first broke.
Haines fairly quickly confirmed a damage assessment was ongoing related to the Mar-a-Lago saga last year.
Then-House Intelligence Chairman Adam Schiff (D-CA) and then-House Oversight Committee Chairwoman Carolyn Maloney (D-NY) sent an Aug. 13 letter to Haines to “request an immediate review and damage assessment following reports that former President Trump removed and retained highly classified information at his personal residence at the Mar-a-Lago Club in Palm Beach, Florida, in potential violation of the Presidential Records Act and laws protecting national security, including the Espionage Act.”
Schiff and Maloney said, “Trump’s conduct has potentially put our national security at grave risk. This issue demands a full review, in addition to the ongoing law enforcement inquiry.”
Haines responded less than two weeks later to confirm the ODNI risk assessment on Trump.
“The Department of Justice and the Office of the Director of National Intelligence are working together to facilitate a classification review of relevant materials, including those recovered during the search,” Haines told the Democrats on Aug. 26. “ODNI will also lead an Intelligence Community assessment of the potential risk to national security that would result from the disclosure of the relevant documents. ODNI will closely coordinate with DOJ to ensure this IC assessment is conducted in a manner that does not unduly interfere with DOJ’s ongoing criminal investigation.”
Judge Aileen Cannon, a district court judge in Florida who appointed Judge Raymond Dearie to be special master in the Mar-a-Lago saga in September, ruled then that she “temporarily enjoins the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order.”
She said at the time that her ruling “shall not impede” the classification review and intelligence assessment being conducted by ODNI related to the records seized in the unprecedented August raid. Nevertheless, an ODNI spokesperson told the Washington Examiner in September that it had “paused” the classification review following consultation with federal prosecutors.
Cannon’s own pause on the DOJ’s use of classified documents was then reversed by an appeals court later in September, and the entire special master process was tossed out by a higher court in December.
The DOJ had claimed to the courts that pausing the FBI’s criminal investigation while separately continuing the ODNI’s damage assessment was essentially impossible.
“Uncertainty regarding the bounds of the Court’s order and its implications for the activities of the FBI has caused the Intelligence Community, in consultation with DOJ, to pause temporarily this critically important work,” the DOJ argued in September. “Moreover, the government and the public are irreparably injured when a criminal investigation of matters involving risks to national security is enjoined.”
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Following the appeals court ruling in September, a spokesperson for ODNI told the Washington Examiner that “in consultation with the Department of Justice, ODNI is resuming the classification review of relevant materials and assessment of the potential risk to national security that would result from the disclosure of the relevant documents.”
The ODNI also declined to provide an update or comment on the Mar-a-Lago risk assessment when asked this week.
