Unsealed docs expose early collaboration between Archives, Biden White House in Trump prosecution

One Rule For Me, Another for Thee? The newly unsealed documents provide the latest evidence indicating disparate by government's treatment in Trump and Biden's respective classified documents cases.

Published: April 23, 2024 11:00pm

Updated: April 23, 2024 11:07pm

Just weeks after learning Joe Biden had improperly retained government documents, his administration began working with federal bureaucrats in spring and fall 2021 to increase pressure on Donald Trump for similar issues and eventually prompt a criminal prosecution of the 45th president, according to government memos newly unsealed by a federal judge.

The correspondence, released this week by U.S. District Judge Eileen Cannon in Florida, provide the the most extensive accounting so far of how the Biden White House worked with federal bureaucrats to escalate pressure on Trump to return documents to the National Archives even as it slow-walked similar issues involving its own boss.

One email dated May 5, 2021, shows the National Archives and Records Administration (NARA) had already consulted the Biden White House about missing Trump records, more than a year before the public would learn that the former president president had kept some classified memos.

“I have had several conversations with [Person 40] since the end of the Trump Administration about various paper records that he believes were not transferred to us,” NARA General Counsel Gary Stern wrote to his colleagues in one May email.

"Person 40" was not identified by name in the document but was listed as working for the Biden White House in the Records Management Office, according to a motion filed by Trump’s lawyers in the case, which was previously redacted.

On August 30, 2021, NARA Archivist David Ferriero began to press Trump records representatives more explicitly about the documents, vowing to make referrals to “the Hill, DOJ, and the White House” if the documents had been destroyed or where not turned over soon.

“As you have seen in the press, the House has requested records,” Ferriero writes in one email chain. “Our ability to respond requires access to the 24 boxes which have yet to be accounted for. At this point, I am assuming that they have been destroyed. In which case, I am obligated to report it to the Hill, DOJ, and the White House.”

By September 2021, Stern had decided to draft a criminal referral against Trump to the Justice Department after documents were still not returned, according to an FBI interview summary with a NARA employee, identified as “Person 53” in the court documents.

“Stern approached [Per. 53] to formally draft a letter to DOJ raising concerns about PRA materials from the TRUMP administration which remained unaccounted for by NARA,” the FBI memo stated.

In his interview with the FBI, Person 53 noted in his “years of experience,” he “understood NARA never had to make such a referral to DOJ…to accomplish such an ask.”

When he circulated the draft letter internally, Stern told colleagues he had been in contact with “DOJ counsel” about the matter and was continuing to communicate with the White House Counsel’s Office, showing the Biden administration was in the loop about the efforts to repossess Trump’s documents.

“In addition, [White House] Counsel is now also aware of the issue, and has asked that I keep them in the loop to the extent that we make any reference to the White House Office of Records Management,” Stern wrote in the email.

While NARA and the White House were engaging DOJ on Trump, Biden aides were trying to figure out what to do with memos Biden kept at his University of Pennsylvania Biden Center office in Washington, some which turned out to be classified.

In March 2021, Annie Tomasini, an assistant to Biden, traveled to the Penn Biden Center to take inventory of documents, according to a House Oversight Committee letter. The Biden White House previously claimed that classified documents were “unexpected[ly] disover[ed]” on November 2, 2022, more than a year after Tomasini’s first visit to the center.

NARA did not immediately respond to a request for comment from Just the News for itself or its General Counsel Gary Stern. The White House also declined to respond for a request for comment. 

The new documents provide fresh contrasts in how the Biden administration dealt differently with the discovery of improperly-retained documents by the president and his political rival, Trump.

Sen. Ron Johnson, the top Republican on the Senate Permanent Subcommittee on Investigations, told the "Just the News, No Noise" television show on Tuesday night that the new memos confirm Trump and Biden were treated differently by federal bureaucrats.

Trump was eventually indicted, while Biden escaped criminal charges in part because prosecutors believed he'd be viewed as old and forgetful by a jury. "It's just another outrageous example of the dual system of justice and just the partisan nature within these agencies," Johnson said.

"President Biden gets let off scot free because I guess it's because he's senile. .... President Trump is being prosecuted to the full extent of the law, because he's Donald Trump," the Wisconsin senator said.

The court documents make clear that NARA collaborated and shared periodic updates with both Biden White House officials and Department of Justice officials throughout 2021 and 2022 as their efforts to retrieve classified documents from Trump’s Mar-a-Lago property progressed.

By late January 2022, Stern “consulted” with Deputy White House Counsel, Jonathan Su, who referred the NARA officials directly to the Department of Justice, specifically Associate Deputy Attorneys General Emily Loeb and David Newman.

According to the FBI interview memo, Newman told NARA to refer the matter to both the Archives Inspector General office and the Office of the Director of National Intelligence. Eventually, the NARA Inspector General would send the referral back to the DOJ, to the Public Integrity Section, according to the court documents.

The case against the former president was ultimately born from this referral. Later that year, Attorney General Merrick Garland would approve an official investigation into Trump’s alleged mishandling of classified documents. He appointed Jack Smith as special counsel to oversee the criminal investigation in November 2022.

Previously, Just the News reported that then-White House Deputy Counsel Jonathan Su was engaged in conversations with the FBI, DOJ, and the National Archives as early as April 2022, shortly after Trump and his associates voluntarily returned 15 boxes of classified documents and other presidential records to the agency. Now, according to the dates referenced in the court documents, these contacts started months earlier.

In Just the News’s previous reporting, documents showed the Biden White House was engaged in conversations with the FBI, DOJ, and National Archives to facilitate access to the documents for investigators probing the former president’s handling of classified documents, despite publicly claiming it had no prior knowledge before the FBI raid on Mar-a-Lago.

In a letter sent on May 10, 2022, sent to Trump’s lawyers, by acting National Archivist Debra Steidel Wall summarized the Biden White House’s involvement in the probe.

"On April 11, 2022, the White House Counsel's Office — affirming a request from the Department of Justice supported by an FBI letterhead memorandum — formally transmitted a request that NARA provide the FBI access to the 15 boxes for its review within seven days, with the possibility that the FBI might request copies of specific documents following its review of the boxes," Wall wrote to Trump defense attorney Evan Corcoran.

The letter also revealed that Biden gave the National Archives to the power to waive any claims of executive privilege Trump may assert against any DOJ attempts to gain access to the documents.

“The Counsel to the President has informed me that, in light of the particular circumstances presented here, President Biden defers to my determination, in consultation with the Assistant Attorney General for the Office of Legal Counsel, regarding whether or not I should uphold the former President's purported 'protective assertion of executive privilege,'" Wall wrote. "... I have therefore decided not to honor the former President's 'protective' claim of privilege.”

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