Biden’s notebooks among items seized by FBI in Delaware home search

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Notebooks that President Joe Biden wrote in during his time as vice president are among the items the FBI took from one of his Delaware homes during a search there last week, according to a person familiar with the investigation.

The notebooks were seized because Biden’s writings on some of the pages relate to his official business as vice president, including details of his diplomatic engagements during the Obama administration, and may reference classified information, this person said. They said the notebooks do not have classified markings on them, but some of the handwritten notes inside of them could be considered as such given their sensitive content. 

Other pages in the notebooks, while they may not contain potentially classified information, could still be considered government property under the Presidential Records Act because they pertain to official business Biden conducted as vice president, the person familiar with the investigation said.

The notebooks include a mix of handwritten notes from Biden on various topics, both personal and official, this person said. On some pages Biden wrote down things about his family or his life unrelated to public office, they said. On other pages, they said he memorialized in writing some of his experiences or thoughts as vice president at the time.

The number of notebooks Biden kept is large, according to the person familiar with the investigation, but they did not know the precise number.

When asked about the notebooks, a spokesperson for Biden’s personal lawyer Bob Bauer reiterated the position the president’s legal team has taken in previous statements about the Justice Department’s investigation into Biden’s possession of classified material from the Obama administration that was found in his Wilmington, Delaware, residence and an office in Washington, D.C. that he used after leaving the vice presidency.

“As noted in the statement released on January 14, consistent with our view of the requirements of our cooperation with DOJ in this matter, we will not comment on the accuracy of reports of this nature,” the spokesperson said.

The Justice Department declined to comment. The FBI did not immediately respond to a request for comment.

Bauer’s spokesperson on Friday declined to comment when asked whether Biden knew the notebooks were packed in boxes that left with him at the end of the Obama administration, if he’s accessed them since leaving the vice presidency and whether he thought the notebooks were his personal property.

In a letter this week to former presidents and vice presidents, the National Archives requested their offices search for any materials in their possession that might relate to their tenures in office, including “to determine whether bodies of materials previously assumed to be personal in nature might inadvertently contain presidential or vice presidential records subject to the [Presidential Records Act], whether classified or unclassified.”

The request followed a battle between former President Donald Trump and the Archives over his possession of classified documents after leaving office, which led to the FBI obtaining a search warrant in August to retrieve them from his Mar-a-Lago estate; Biden aides’ discovery in November of classified documents from his time as vice president at his private office, as well as subsequent discoveries; and former Vice President Mike Pence’s disclosure that his aides had found classified documents at his Indiana home this month.

Trump and Biden’s possession of classified documents is the subject of separate special counsel investigations. Attorney General Merrick Garland has so far not named a special counsel to investigate Pence’s handling of classified documents.

Biden’s possession of notebooks from his time as vice president that include notes about official business he conducted in that role raises questions about whether he appropriately followed procedures for preserving presidential records. It also raises questions about whether the notebooks are considered personal or official, and how other vice presidents and presidents who kept similar notebooks while in office have handled theirs.

Federal law allows presidents and vice presidents to write and, upon leaving office, keep diaries and notes of a “personal” nature, so long as they hadn’t shared the material with anyone in the time they held office. (Former President Ronald Reagan kept a hand-written diary during his eight years in the White House, storing them in a dresser drawer and only his wife, Nancy, knew they were there, according to Douglas Brinkley, the presidential historian who later edited and published the diaries.)

Jason R. Baron, a former director of litigation at the National Archives, said when it comes to notebooks containing handwritten notes about personal matters, intermixed with notes about government business, they would likely be considered personal property if Biden never shared them with any government staffers during the vice presidency.

Baron said that holds true whether Biden jotted a note to himself about buying a birthday president for his wife or wrote about a meeting with a foreign leader. 

But if Biden did share the contents of the notebooks with staff while serving as vice president, the material would be deemed official records belonging to the government, Baron said.

“Handwritten personal notes of a former president or vice president are only considered presidential records if they were shared or communicated with other White House or federal agency personnel for use in transacting government business,” Baron said. “A former president or vice president has the right to take out of the White House personal notes — they are not official records that come into the legal custody of the National Archives at the end of an administration.”

On Jan. 20, the FBI spent more than 12 hours searching Biden’s Wilmington home for any possible records from his eight years as vice president, including potentially classified materials.

The following day, Bauer, the president’s personal lawyer, said in a statement that federal investigators had taken with them more than just documents with classified markings after accessing Biden’s “personally handwritten notes, files, papers, binders, memorabilia, to-do lists, schedules, and reminders going back decades.”

The Department of Justice “took possession of materials it deemed within the scope of its inquiry, including six items consisting of documents with classification markings and surrounding materials,” Bauer said in the statement. “DOJ also took for further review personally handwritten notes from the vice-presidential years.”

The revelations of that Trump, Biden and Pence all possessed classified materials after they had left office has elicited calls for changes in the process for when presidents and vice presidents depart.

Norman Eisen, who worked as a special counsel for ethics in former President Barack Obama’s White House, said he is advocating for a closer review of a president and vice president’s papers before they leave office so that government documents aren’t packed away with their other belongings.

Eisen outlined a hypothetical scenario where an outgoing president or an aide wanted to pack up a medical bill that needed to be paid and was required to call the National Archives to have an employee determine whether it’s a personal or government record.

On Friday, Pence apologized for having classified documents in his possession and said he takes full responsibility for it.

Biden has said he was surprised to learn classified documents were found at his former office in November and has said “there’s no there there” in terms of the federal investigation. The White House counsel’s office has said the documents were inadvertently packed in boxes and taken after Biden left the vice presidency.

One person close to Biden said it’s impossible to imagine that he packed up boxes himself upon leaving the vice presidency. That would have been his staff’s job, this person said, speaking on condition of anonymity to talk more freely.

“He’s not putting anything in boxes,” this person said.

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