Garland appoints special counsel to probe Biden classified documents

Attorney General Merrick Garland, citing what he called “extraordinary circumstances,” appointed a special counsel Thursday to investigate the handling of classified documents found at a former office and the Delaware home of President Biden – ratcheting up the stakes and potential consequences surrounding the national security cases that have now ensnared both the current president and his predecessor.

Garland made the announcement Thursday at the Justice Department, tapping Robert K. Hur, a former U.S. attorney in Maryland who also served as a senior Justice Department official during the Trump administration.

The attorney general also described how the investigation has progressed, noting that on Jan. 5, the first prosecutor assigned by Garland to review the matter recommended that a special counsel take up the case. The new investigation will examine whether “any person or entity violated the law in connection with this matter,” said Garland, who expressed confidence Hur will tackle the assignment “in an even-handed and urgent manner.”

Hur’s appointment “underscores for the public the department’s commitment to both independence and accountability for particularly sensitive matters, and to making decisions indisputably guided only by the facts and the law,” Garland said.

In a written statement, Hur said he “will conduct the assigned investigation with fair, impartial, and dispassionate judgment. I intend to follow the facts swiftly and thoroughly, without fear or favor, and will honor the trust placed in me to perform this service.”

A special counsel has more independence from Justice Department leaders than other federal prosecutors, but still ultimately answers to the attorney general.

It is the second time in two months Garland has named a special counsel to investigate the handling of classified materials found in the home and office of a current or former commander in chief. In November, he assigned veteran federal prosecutor Jack Smith to oversee day-to-day operations of the criminal probe of former president Donald Trump’s handling of classified documents after leaving the White House; Smith is also managing aspects of the Justice Dept.’s investigation of the events leading up to the Jan. 6, 2021 attack on the U.S. Capitol that are most closely linked to Trump.

The Biden documents special counsel will examine the discovery of at least two sets of classified material.

About 10 documents from Biden’s time as vice president were found Nov. 2 at the Washington-based Penn Biden Center for Diplomacy and Global Engagement, an institute Biden started after leaving the vice presidency in 2017.

Biden’s personal lawyers found the documents and said they immediately turned them over to the National Archives and Records Administration, which is responsible for storing and preserving presidential records.

Legal representatives for the president then searched his homes in Wilmington and Rehoboth Beach, Del., and found additional classified material at the Wilmington residence, the White House said Thursday morning. Most of the documents were in the garage, while a single page was found in an adjacent room. No documents were found in the Rehoboth Beach home, Biden lawyer Richard Sauber said in a statement.

In announcing the appointment, Garland offered the most detailed timeline yet of the discoveries of classified documents, and the growing sense within the Justice Department that a thorough criminal investigation was necessary.

On the night of Nov. 4, a Justice Department was notified by the inspector general for the National Archives that White House lawyers had relayed that documents with classified markings had been found at the Biden think tank – a place not authorized for storage of classified information, the attorney general said.

Five days later, the FBI launched an assessment to determine if any laws might have been broken. On November 14, Garland assigned John Lausch, the U.S. Attorney in Chicago and a Trump administration holdover, to conduct an initial investigation, he said.

On Dec. 20, prosecutors encountered a disturbing new wrinkle: a lawyer for Biden notified Lausch that additional documents marked classified had been found in the garage in Biden’s Wilmington, Del. home. Those records dated to his time as Vice President in the Obama administration, Garland said.

The FBI visited the home and took possession of the documents, according to the attorney general. But even that wasn’t the last such discovery, since Biden’s lawyer contacted authorities again just hours before Garland’s announcement and said an additional classified document was found at the Wilmington residence.

The attorney general said that Lausch briefed him last week on his findings, and told him a special counsel appointment was warranted in the case.

“This is a textbook case of what is required under the regulations,” a senior Justice Department official said before Garland’s announcement, speaking on the condition of anonymity because they were not authorized to discuss the matter publicly.

From the information revealed publicly so far, there appear to be key differences between the Trump and Biden classified documents cases. In the Trump matter, months of unsatisfied demands for the return of all secret government documents culminated in a court-approved FBI search in August of Mar-a-Lago, Trump’s Florida home and private club, and an active grand-jury investigation of the former president.

The FBI eventually recovered more than 300 classified documents and thousands of nonclassified government materials from Mar-a-Lago last year, according to government court filings. Many were found after Trump’s team assured federal investigators that they had conducted a diligent search and turned over everything they could find.

In contrast, Biden and his team appear to have returned the materials to government custody voluntarily, his lawyers and others familiar with the situation, speaking on the condition on anonymity in order to discuss it, have said.

Federal regulations detail steps that Garland can take if he believes a case may warrant the appointment of a special counsel. With the Trump investigations, he cited the need to maintain public trust in the Justice Department’s work, even as Trump declared he would again run for president and Biden said he also expected to seek a second term.

Hur is the third special counsel currently at work in the Justice Department. John Durham was appointed during the Trump administration to investigate the agencies who probed Russian interference in the 2016 election, an inquiry that expanded to include probes of the Trump and his campaign. Durham, a former U.S. attorney from Connecticut, has been winding down his work in recent months, and it is unclear how much longer he will serve in that role.

Legal experts say that it is not uncommon for some people who have security clearances to mishandle classified documents, or to inadvertently keep material that is restricted after leaving government service. The criteria for prosecuting people who mishandle classified documents include proving that the person deliberately flouted rules for how to secure the materials.

The Biden classified documents probe, launched as Republicans took the majority in Congress vowing to investigate the Biden administration on multiple fronts, has deepened the already intense scrutiny of the Justice Department, which has been attacked by Trump and his GOP allies for years.

Republicans have criticized Garland since his nomination as the nation’s most senior law enforcement official, and have repeatedly accused the department of unfairly targeting Trump and his allies while, they say, failing to aggressively investigate Hunter Biden, the president’s son, who is under investigation for alleged tax and gun-application violations.

The House on Tuesday approved a GOP resolution to create a select subcommittee of the Judiciary that would hold hearings and issue subpoenas to examine the agencies and people that have investigated Trump.

Biden’s lawyers have insisted they proactively aided authorities after the discovery of classified documents in the president’s former office and his garage, implicitly seeking to contrast their case with that of Trump, who has harshly criticized the FBI for investigating him.

“As we stated previously, we are fully cooperating with the National Archives and the Department of Justice in a process to ensure that any Obama-Biden Administration records are appropriately in possession of the Archives,” Sauber said.

He said the Wilmington and Rehoboth residences were the other locations – in addition to the Penn Biden Center – that documents not headed to the Archives would have been shipped after Biden left the vice presidency. “As was done in the case of the Penn-Biden Center, the Department of Justice was immediately notified” of the second batch of documents, Sauber said, “and the lawyers arranged for the Department of Justice to take possession of these documents. The White House will continue to cooperate with the review by the Department of Justice.”

Shortly after his lawyer’s statement was released on Thursday, Biden responded to questions from reporters after giving remarks related to the economy. He was pressed on why classified documents were found at his home garage.

“By the way, my Corvette’s in a locked garage, so it’s not like it’s sitting out in the street,” he said. “As I said earlier this week, people know I take classified material seriously. I also said we’re cooperating fully with the Justice Department’s review.”

He said that the documents were discovered in “storage areas and file cabinets in my home and my personal library.”

The president has suggested he will say more in the near future. “I’m going to get the chance to speak on all of this, God willing, soon,” he said.