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Garland appoints special counsel to probe Biden classified documents

Robert K. Hur is a former U.S. attorney from Maryland who served as a senior official in the Trump Justice Department

Attorney General Merrick Garland on Jan. 12 appointed a special counsel to investigate the handling of classified documents found at President Biden’s homes. (Video: The Washington Post)
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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 — raising the legal stakes and increasing potential political consequences of national security cases ensnaring both Biden and his predecessor.

The nation’s top law enforcement official made the announcement Thursday, tapping Robert K. Hur, a former U.S. attorney in Maryland who served as a senior Justice Department official during the Trump administration. Hur’s investigation will proceed separately from a different, longer-running probe into the retention of classified documents at the Florida home of former president Donald Trump.

Thursday’s appointment could ultimately redefine the relationship between Biden and the attorney general he chose to run the Justice Department as an independent arm of the government. It also means that for some indefinite period of time, the two potential rivals for the White House in 2024 will each proceed toward that race under the shadow of criminal investigations.

Speaking to reporters at Justice Department headquarters, Garland provided new details on the timing and progress of the Biden documents investigation, noting that on Jan. 5, the first prosecutor he’d assigned to review the matter recommended that a special counsel take up the case.

Hur will examine whether “any person or entity violated the law in connection with this matter,” said the attorney general, who expressed confidence the special counsel will tackle the assignment “in an evenhanded and urgent manner.”

Garland said 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.”

A special counsel has more independence from Justice Department leaders than other federal prosecutors, but still ultimately answers to the attorney general. It remains Justice Department policy that a sitting president cannot be charged with a crime — leaving it unclear how the agency might handle Hur’s findings.

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.”

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 Trump’s handling of classified documents after leaving the White House; Smith is also managing aspects of the Justice Department’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.

It’s unclear whether the two special counsels will communicate or coordinate their legal analyses, given that both prosecutors are tasked with making determinations about possible criminal culpability involving the mishandling of government secrets found among the papers of current or former chief executives.

A 2020 campaign ad shows then-candidate Joe Biden with his corvette near an open garage door. (Video: Joe Biden for President 2020)

Hur 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, a think tank Biden started after leaving the vice presidency in 2017. Biden’s personal lawyers say they immediately turned the documents over to the National Archives and Records Administration, which is responsible for storing and preserving presidential records.

Legal representatives for Biden 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.

While speaking on the economy on Jan. 12, President Biden confirmed an additional set of classified documents were found after a search of his Delaware homes. (Video: The Washington Post)

Garland said the Archives’ inspector general notified the Justice Department on the night of Nov. 4 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 in the matter. On Nov. 14, Garland said, he assigned John Lausch, the U.S. attorney in Chicago and a Trump administration holdover, to conduct an initial investigation.

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 at the president’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; Biden’s lawyer contacted authorities again Thursday morning, 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.

After the announcement, Sauber, the Biden lawyer, said: “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.”

The statement did not address why the Biden legal team took more than a month and a half to find documents with classified markings at his home, and then weeks more to report the discovery of the additional document.

At an unusually contentious briefing with reporters Thursday afternoon, White House spokeswoman Karine Jean-Pierre defended Biden’s lawyers but did not provide additional details about the timeline.

“His lawyers, his team did the right thing,” she said during a barrage of a questions that lasted more than 30 minutes and focused on why the White House did not disclose the discovery of the documents sooner, whether officials were being transparent with the public, and exactly where and when the papers were found.

Skepticism before a search: Inside the Trump Mar-a-Lago documents investigation

Both President Biden and former president Donald Trump are involved in cases where classified government documents were found in their private possession. (Video: Blair Guild/The Washington Post)

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 recovered more than 300 classified documents and thousands of non-classified 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, according to his lawyers and others familiar with the situation, who spoke on the condition of anonymity to discuss it. It is still unclear, however, if all such material has been found and returned.

When announcing the Trump special counsel, Garland 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. Garland made a similar point Thursday, saying he was confident in the department’s ability to handle cases but thought Hur’s appointment was justified to ensure public trust in the process.

Hur is the third special counsel currently at work for 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 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.

Who is Robert Hur? What you need to know

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 control of the House 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, 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.

On Jan. 12, House Minority leader Hakeem Jefferies (D-N.Y.) said he had "full faith in President Joe Biden" amid findings of classified documents. (Video: The Washington Post)

By insisting they proactively aided authorities after the discovery of classified documents in the president’s former office and his garage, Biden’s lawyers have implicitly sought 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.

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, he added.

Questioned by reporters Thursday morning before Garland’s announcement, Biden reiterated that the White House was “cooperating fully with the Justice Department’s review.”

“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.”

He said the documents were discovered in “storage areas and file cabinets in my home and my personal library,” and suggested he will have more to say. “I’m going to get the chance to speak on all of this, God willing, soon.”

Yasmeen Abutaleb contributed to this report.