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Follow for the latest on the discovery of the second batch of classified documents from Biden’s vice presidency.

WASHINGTON — President Biden’s lawyers discovered “a small number” of classified documents in his former office at a Washington think tank last
fall, the White House said on Monday, prompting the Justice Department to scrutinize the situation to determine how to proceed.

The inquiry, according to two people familiar with the matter, is a type
aimed at helping Attorney General Merrick B. Garland decide whether to
appoint a special counsel, like the one investigating former President
Donald J. Trump’s hoarding of sensitive documents and failure to return
all of them.

The documents found in Mr. Biden’s former office, which date to his time
as vice president, were found by his personal lawyers on Nov. 2, when they
were packing files at the Penn Biden Center for Diplomacy and Global Engagement, according to the White House. Officials did not describe
precisely how many documents were involved, what kind of information they included or their level of classification.

The White House said in a statement that the White House Counsel’s Office notified the National Archives and Records Administration on the same day
the documents were found “in a locked closet” and that the agency
retrieved them the next morning.

Mr. Biden had periodically used an office at the center from mid-2017
until the start of the 2020 presidential campaign, and the lawyers were
packing it up in preparations to vacate the space. The discovery was not
in response to any prior request from the archives, and there was no
indication that Mr. Biden or his team resisted efforts to recover any
sensitive documents.

Mr. Garland has assigned John R. Lausch Jr., the U.S. attorney in Chicago
who was appointed by Mr. Trump, to look into the matter, according to two people familiar with the decision, confirming a CBS News report. Mr.
Lausch has been scrutinizing the situation since November, according to
one of the people, who spoke on the condition of anonymity to discuss a sensitive matter.

Understand the Biden Documents Case
The discovery of classified documents from President Biden’s time as vice president has prompted a Justice Department investigation.
In Washington: Attorney General Merrick B. Garland’s appointment of a
special counsel to investigate the situation drew a mixed reception from Republicans, who had hoped to spearhead the effort themselves.
Biden’s Miscalculations: How has Mr. Biden handled the document
discoveries, and why was the public in the dark for so long? Michael D.
Shear, a White House correspondent for The Times, joined “The Daily” to
discuss the ordeal.
Implications for Trump Case: Despite the differences between them, the
cases involving the president and his predecessor are similar enough that investigators may have a harder time prosecuting Mr. Trump criminally. Democrats’ Reaction: Mr. Biden is facing blowback from some members of his
own party, as his allies express growing concern that the case could get
in the way of the Democrats’ momentum coming out of the midterms.
Two people familiar with the matter said that Mr. Lausch has been
conducting a so-called initial investigation under a Justice Department regulation that allows an attorney general to appoint a special counsel, a special prosecutor who operates with a measure of day-to-day independence
to conduct a particularly sensitive investigation.

Under the regulation, an initial investigation consists of “such factual inquiry or legal research as the attorney general deems appropriate” to
“be conducted in order to better inform the decision” about whether a
matter warrants the appointment of a special counsel.

The White House statement said that it “is cooperating” with the
department but did not explain why Mr. Biden’s team waited more than two
months to announce the discovery of the documents, which came a week
before the midterm congressional elections when the news would have been
an explosive last-minute development.

It also came shortly before Mr. Garland’s Nov. 18 appointment of Jack
Smith as a special counsel to take over the criminal investigation into
Mr. Trump’s failure to return a large number of classified documents that
were sent to his Florida residence and club, Mar-a-Lago, when he left
office — even after being subpoenaed.

At the time, Mr. Garland cited the fact that Mr. Trump had just announced
he was running for president again, and that Mr. Biden had indicated that
he is likely to run as well, as justification to transfer control of the investigation to Mr. Smith. (An attorney general retains final say over
whether anyone is charged with a crime by a special counsel.)

Mr. Trump jumped on Monday’s disclosure. “When is the FBI going to raid
the many houses of Joe Biden, perhaps even the White House?” he wrote on
his social media platform, Truth Social. “These documents were definitely
not declassified.”

What we consider before using anonymous sources. Do the sources know the information? What’s their motivation for telling us? Have they proved
reliable in the past? Can we corroborate the information? Even with these questions satisfied, The Times uses anonymous sources as a last resort.
The reporter and at least one editor know the identity of the source.

Learn more about our process.
That appeared to refer to Mr. Trump’s disputed claim that before leaving
office he declassified all the documents the F.B.I. found when it searched Mar-a-Lago in August. No credible evidence has emerged to support that
claim, and his lawyers have resisted repeating it in court, where there
are professional consequences for lying. In any case, the potential
charges the F.B.I. cited in its search warrant affidavit do not depend on whether intentionally mishandled documents were classified.

But while Mr. Trump tried to suggest a parallel, the circumstances of the
Biden discovery as described appeared to be significantly different. Mr.
Biden had neither been notified that he had official records nor been
asked to return them, the White House said, and his team promptly revealed
the discovery to the archives and returned them within a day.

“The documents were not the subject of any previous request or inquiry by
the archives,” Richard A. Sauber, a special White House counsel, wrote in
the statement. “Since that discovery, the president’s personal attorneys
have cooperated with the archives and the Department of Justice in a
process to ensure that any Obama-Biden administration documents are appropriately in the possession of the archives.”

By contrast, in 2021 the archives repeatedly asked Mr. Trump to turn over
large numbers of documents it had determined were missing. He put the
agency off for months, then allowed it to retrieve 15 boxes of material in early 2022, including scores of classified documents, but it was later discovered that he kept more.

Eventually, the Justice Department obtained a grand jury subpoena for
documents with classification markings remaining in Mr. Trump’s
possession, and a lawyer for Mr. Trump turned over several more and told
the department there were none left. But an August search by the F.B.I.
found 103 more marked as classified — along with thousands of other
official records.

The search warrant affidavit that the Justice Department submitted
suggested that Mr. Trump was under investigation for obstruction, along
with possible violations of the Espionage Act, which criminalizes the
willful unauthorized retention of national security documents and failure
“to deliver them on demand” to a government official entitled to take
custody of them.

Still, whatever the legal questions, as a matter of political reality, the discovery will make the perception of the Justice Department potentially charging Mr. Trump over his handling of the documents more challenging. As
a special counsel, Mr. Smith is handling that investigation, along with
one into Mr. Trump’s efforts to overturn the 2020 election results and the
Jan. 6 attack on Congress, under Mr. Garland’s supervision.

Moreover, the discovery will fuel the fires on Capitol Hill, where
Republicans who have just taken the House majority were already planning multiple investigations of the Biden administration, including the
decision to have the F.B.I. search Mar-a-Lago.

Representative James R. Comer, the Kentucky Republican who is in line to
become the chairman of the House Oversight Committee, said on Monday that
he would investigate the discovery of the classified documents in Mr.
Biden’s office, vowing to send letters demanding information within 48
hours.

“How ironic,” Mr. Comer said in an interview. “Now we learn that Joe Biden
had documents that are considered classified. I wonder, is the National Archives going to trigger a raid of the White House tonight? Or of the
Biden Center?” He added, “So now we’re going to take that information that
we requested on the Mar-a-Lago raid, and we’re going to expand it to
include the documents that Joe Biden has.”

The top Democrat on the committee, Representative Jamie Raskin of
Maryland, downplayed the matter, saying that he had confidence that Mr.
Garland had taken appropriate steps to review the circumstances and that
Mr. Biden’s lawyers “appear to have taken immediate and proper action” to notify the archives of the documents.

The department’s leadership decided to make the unusual choice of
assigning the case outside the jurisdictions involved because Mr. Lausch
was a Republican appointee and his work would likelier be seen as
impartial, according to a person familiar with the situation.

Mr. Biden had kept Mr. Lausch in office at the request of the two
Democratic senators from Illinois, Richard J. Durbin and Tammy Duckworth, because he was investigating Michael J. Madigan, the former speaker of the Illinois House of Representatives, during the presidential transition in
2021. In March, a federal grand jury indicted Mr. Madigan, a Democrat, on
22 counts of racketeering and corruption charges.

A former top prosecutor appointed during President Barack Obama’s administration said the attorney general should turn the Biden matter over
to a special counsel, just as he did the Trump investigation.

“The circumstances of Biden’s possession of classified documents appear different than Trump’s, but Merrick Garland must appoint a special counsel
to investigate,” said John P. Fishwick Jr., who served as U.S. attorney
for the Western District of Virginia from 2015 to 2017. “Merrick Garland
waited too long to let us know he had opened this investigation,” he
added. “To keep the confidence of the country, you need to be transparent
and timely.”

A department spokesman had no comment on the matter, and would not say
whether the national security division, which has spearheaded the
investigation into Mr. Trump’s retention of documents at his Florida
residence and resort, was also involved.

With Mr. Lausch investigating the handling of classified information in
Mr. Biden’s office, and David Weiss, the U.S. attorney in Delaware, investigating the president’s son, Hunter Biden, both Trump-appointed U.S. attorneys who have remained at the department are now scrutinizing the
Biden family.

https://www.nytimes.com/2023/01/09/us/politics/biden-classified-
documents.html

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