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Opinion Why Biden’s document case is different than Trump’s

Attorney General Merrick Garland on Thursday. (Reuters/Leah Millis)
3 min

The country has gotten a two-for-one deal on scandals involving classified documents, starting last summer with the trove of sensitive materials recovered from former president Donald Trump’s Mar-a-Lago Club and continuing this week with privileged papers found at President Biden’s home and former office. Now, Attorney General Merrick Garland has appointed a special counsel to assess the latter case — just as he had in the former. This raises the possibility of not one but two drawn-out special counsel probes in the coming year — or years — each of which presents risks, of taking longer than necessary and of stirring up gratuitous legal and political drama. As far as possible, the Justice Department should treat these investigations separately, each on its own legal merits, and ensure neither gets out of control.

CBS News reported this week that the president’s personal lawyers found on Nov. 2 Obama-Biden administration records in a locked closet at the Penn Biden Center for Diplomacy and Global Engagement, and that a number of the files bore classified markings. The White House Counsel’s Office notified the National Archives and Records Administration, which took possession of the papers the next day. Then Mr. Biden’s lawyers discovered more documents in his Wilmington, Del., residence. Mr. Garland on Thursday tapped Robert K. Hur, a former U.S. attorney in Maryland and senior Justice Department official during the Trump administration, to serve as special counsel.

Details about the papers remain unknown, and transparency from the White House would help. Staying silent until CBS’s report conveniently postponed disclosure until after the midterm elections, left the president vulnerable to accusations of intentional delay. The early stages of Justice Department investigations often aren’t public, and there are arguments for waiting until the process is complete to release details. Mr. Biden’s legal team doesn’t even have the full set of facts because it turned over the documents to the National Archives almost immediately after discovering them. Releasing a partial accounting could serve to confuse rather than clarify.

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But, after the CBS report, the public is already drawing conclusions with incomplete information. Mr. Biden could promote trust and preempt criticism by sharing more about the nature of the documents and the circumstances surrounding their inappropriate storage — or at least by explaining why he has so far declined to speak about them beyond brief responses during news conferences, including on Thursday, that added little to the statements his team has already made.

Eugene Robinson: Biden’s and Trump’s document cases differ. We need to know more.

Even more important is that Mr. Garland ensures both investigations proceed justly. Whether the appointment of a special counsel was warranted in the Biden case, even for the sake of consistency with the Trump case, is questionable. Given the record so far, the differences between the Biden case and the Trump case appear glaring, particularly in how staff handled sensitive documents and their return to the proper authorities. Mr. Trump’s team dragged its feet to the point of possible obstruction; the Biden team appears to have promptly, voluntarily and fully cooperated. There might be many other differences not yet visible. Special and independent counsels have a spotty record, as past prosecutors determined to avoid ending their probes with little to show have overspent government resources, overextended their timelines or over-interpreted their missions.

Mr. Garland should remember that he is still in charge. It remains his role to oversee the investigations, his responsibility to accept or reject any recommendations, and his duty to ensure the operations don’t get out of hand. He should also seek to keep them distinct from one another. Mr. Garland’s overriding considerations should be whether laws were broken, by whom, for what reason and with what results, not how the politics surrounding these probes develop.

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Editorials represent the views of The Post as an institution, as determined through debate among members of the Editorial Board, based in the Opinions section and separate from the newsroom.

Members of the Editorial Board and areas of focus: Opinion Editor David Shipley; Deputy Opinion Editor Karen Tumulty; Associate Opinion Editor Stephen Stromberg (national politics and policy, legal affairs, energy, the environment, health care); Lee Hockstader (European affairs, based in Paris); David E. Hoffman (global public health); James Hohmann (domestic policy and electoral politics, including the White House, Congress and governors); Charles Lane (foreign affairs, national security, international economics); Heather Long (economics); Associate Editor Ruth Marcus; and Molly Roberts (technology and society).