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WASHINGTON — Attorney General Merrick B. Garland appointed a special
counsel on Thursday to investigate how classified documents had ended up
in President Biden’s private office and home, opening a new legal threat
to the White House and providing ammunition to its Republican opponents.
Mr. Garland assigned Robert K. Hur, a veteran prosecutor who worked in the Trump administration, to examine “the possible unauthorized removal and retention of classified documents or other records discovered” at Mr.
Biden’s think tank in Washington and his residence in Wilmington, Del., according to an order signed by the attorney general.
The White House promised to fully cooperate while insisting prosecutors
would find only unintentional errors. People close to the situation said several Biden associates had already been interviewed. But the decision to
open a full investigation put both the president and the attorney general
in awkward positions at the same time another special counsel appointed by
Mr. Garland considers whether to charge former President Donald J. Trump
or his associates with mishandling sensitive documents and obstructing
efforts to retrieve them.
The circumstances in the Biden and Trump cases are markedly different. Mr. Trump resisted requests to return documents for months, even after being subpoenaed, while as far as is known, Mr. Biden’s lawyers found the papers without being asked and turned them over promptly. But as a political
matter, the new investigation will muddy the case against Mr. Trump, who
is already using it to argue that he is being selectively persecuted by
the administration of a president he plans to challenge in 2024.
Mr. Biden, who excoriated Mr. Trump for being “irresponsible” with
national secrets, now has to answer for his own team’s misplacement of sensitive papers. Moreover, his White House did not disclose to the public
the discovery of the documents from his time as vice president for two
months, waiting until after the November midterm elections, when it might
have damaged Democrats.
And as a new timetable outlined by Mr. Garland on Thursday made clear,
even then the White House did not fully reveal the extent of the situation
in its original statement. That statement, released on Monday, confirmed a media report about a first batch discovered at his think tank in November
but made no mention of a second batch found at his Delaware home in
December.
Only on Thursday, three days after that initial statement, did the White
House confirm media reports about the second batch, which was discovered
in the garage of Mr. Biden’s home in Wilmington, and a final document
found nearby on Wednesday night.
When a reporter asked Mr. Biden at an unrelated event on Thursday why classified documents were kept along with his prized Corvette, Mr. Biden replied: “My Corvette is in a locked garage. OK? So it’s not like they’re sitting out in the street.”
“But as I said earlier this week,” he added, “people know I take
classified documents and classified material seriously. I also said we’re cooperating fully and completely with the Justice Department’s review.”
Karine Jean-Pierre, the White House press secretary, said the president
had not been informed in advance of Mr. Garland’s decision to appoint a
special counsel. She declined to clarify what initially prompted the
search, how long it progressed or why the White House did not inform the
public earlier.
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.
Mr. Biden, she said, “was kept informed throughout,” but does not know
what is in the documents. “The search is complete, he is confident in this process, and I will leave it there,” she added.
But her account of the discovery of the original batch of documents
appeared at odds with the Justice Department timetable. “We did this by
the book, and what I mean by that is the moment that the lawyers
discovered that the papers, the documents were there, they reached out to
the archives, they reached out to the Department of Justice,” she said.
In fact, according to the department, the White House informed the
National Archives and Records Administration but not Justice. The
department learned about the documents only when notified by the archives.
A person familiar with the Biden team’s thinking, who requested anonymity
to discuss sensitive legal matters, said the president’s lawyers had
contacted the archives with the understanding that it would inform other agencies that needed to know.
Once the Justice Department was brought in, the Biden team then dealt
directly with prosecutors, including when the second batch and a final
document were discovered. But it meant that the first batch was moved to
the archives before the F.B.I. could examine them where they were
originally found.
While White House officials privately played down the importance of Mr.
Hur’s appointment, arguing that it would matter more in Washington
political circles than in the rest of the nation, special prosecutor investigations have a way of distracting and even crippling a White House, especially if they spread beyond their original scope.
With the exception of President Barack Obama, every occupant of the Oval
Office since Watergate has confronted a special prosecutor scrutinizing
him or members of his staff, sometimes for relatively narrow matters but
at other times for issues that have mushroomed into the threat of
impeachment.
“An independent or special counsel investigation that touches on a White
House can be significantly debilitating, especially if not isolated and managed,” said W. Neil Eggleston, who helped defend President Bill Clinton
and represented a top aide to President George W. Bush during such
inquiries before becoming White House counsel to Mr. Obama.
How Times reporters cover politics. We rely on our journalists to be independent observers. So while Times staff members may vote, they are not allowed to endorse or campaign for candidates or political causes. This includes participating in marches or rallies in support of a movement or
giving money to, or raising money for, any political candidate or election cause.
Learn more about our process.
In the Clinton White House, “responding to the investigation would occupy
large parts of the day of the senior staff, the White House Counsel’s
Office and the communications group,” said Mr. Eggleston. “There is
limited bandwidth each day, and hours taken up by responding to an investigation are lost.”
The decision to select a special counsel to look into the handling of the documents comes at an extraordinary moment for Mr. Garland, who in
November tapped Jack Smith, a former war crimes and public corruption prosecutor, to lead the investigations into Mr. Trump’s mishandling of government documents as well as his actions related to the Capitol attack
on Jan. 6, 2021.
The appointment of Mr. Hur on Thursday was intended to insulate the
Justice Department from accusations of partisanship at a time when the new G.O.P. majority in the House has embarked on an aggressive and open-ended investigation into what they claim is the Biden administration’s use of government power against Republicans.
“I strongly believe that the normal processes of this department can
handle all investigations with integrity,” Mr. Garland told reporters.
“But under the regulations, the extraordinary circumstances here require
the appointment of a special counsel for this matter. This appointment underscores for the public the department’s commitment to both
independence and accountability in particularly sensitive matters, and to making decisions indisputably guided only by the facts and the law.”
Richard Sauber, a White House lawyer overseeing the response to
investigations, said the president’s team would cooperate. “We are
confident that a thorough review will show that these documents were inadvertently misplaced, and the president and his lawyers acted promptly
upon discovery of this mistake,” he said in a statement.
Under Mr. Garland’s order, Mr. Hur is authorized to prosecute any crimes arising from the inquiry or to refer matters for prosecution by federal attorneys in other jurisdictions.
“I will conduct the assigned investigation with fair, impartial, and dispassionate judgment,” he said in a statement. “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.”
Mr. Hur, a partner at the white-collar law firm Gibson, Dunn & Crutcher,
worked as an assistant federal prosecutor in Maryland from 2007 to 2014,
then served in the deputy attorney general’s office in 2017 and 2018
during the Trump administration before being appointed U.S. attorney for Maryland, a position he left when Mr. Biden took office.
While U.S. attorney, Mr. Hur defied pressure from Mr. Trump’s Justice Department to prosecute John F. Kerry, Mr. Obama’s secretary of state, who
drew Mr. Trump’s ire for arguing to preserve a nuclear agreement with
Iran, according Geoffrey S. Berman, a former Trump-era U.S. attorney in Manhattan. In his memoir, “Holding the Line,” Mr. Berman wrote that after refusing to prosecute Mr. Kerry, Mr. Hur was assigned to take over the
matter and ultimately declined to pursue charges as well.
In his statement on Thursday, Mr. Garland filled in some, if not all, of
the gaps in the public timeline surrounding the discovery of the documents
in Mr. Biden’s home and office.
Mr. Biden’s lawyers discovered the first batch of classified papers, said
to include briefing materials on foreign governments from his time as vice president, on Nov. 2, just six days before the midterm elections, as they
were closing down his office at the Penn Biden Center for Diplomacy and
Global Engagement in Washington.
They alerted the archives, which retrieved them the next morning. Archives officials then informed the Justice Department on Nov. 4. The F.B.I. began
an assessment of the situation on Nov. 9. On Nov. 14, Mr. Garland assigned
John R. Lausch, the U.S. attorney in Chicago and a Trump appointee, to
conduct a preliminary review to determine whether a special counsel was merited.
But the Biden team waited several weeks before coming to the conclusion,
as Mr. Lausch’s review proceeded, that they should make sure there were no
more surprises and conduct a search of other Biden properties. On Dec. 20,
they found the second batch in Mr. Biden’s garage in Wilmington and
notified Mr. Lausch. No classified papers were found at the president’s vacation home in Rehoboth Beach, Del.
Mr. Lausch, who stood next to Mr. Garland in impassive silence on
Thursday, told the attorney general on Jan. 5 that a special counsel was warranted but the Chicago prosecutor declined to take the role himself
because he plans to leave for the private sector early this year.
Four days later, the White House issued its public statement confirming
the discovery of the original batch of documents in response to a CBS News report. On Wednesday night, as they completed their search, the Biden
lawyers made a third discovery as they found one more single-page
classified document in a room adjacent to the garage in Wilmington and
notified the Justice Department. After media reports, the White House acknowledged publicly on Thursday that Mr. Biden’s aides had found the additional documents.
A person familiar with the Biden team’s thinking said lawyers did not want
to announce what had happened until all the facts had been gathered. They
were leery of offending Justice Department officials by going public prematurely and looking like they were litigating in the media, hoping
that Mr. Lausch would conclude that no special counsel was needed.
Veteran law enforcement officials, however, said the Biden team raised questions by how they had acted after finding the first set of documents
in November, particularly by notifying the archives but not the Justice Department or F.B.I., which are obligated to enforce laws related to the handling of national secrets.
“They created a situation in which the Justice Department was not directly involved initially,” said Timothy Flanigan, a former deputy White House
counsel and Justice Department official under George W. Bush.
“The documents instead were taken out of context and passed through other hands, giving the department no opportunity to review for itself what kind
of security controls were around them and what other things they were
stored with,” he added.
Chuck Rosenberg, a former senior F.B.I. official, said bringing in the
bureau at the beginning would have been wiser. “It is always better for
the F.B.I. to know sooner, rather than later,” he said. “These types of investigations tend not to get better with age.”
https://www.nytimes.com/2023/01/12/us/politics/biden-documents.html
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