The Washington PostDemocracy Dies in Darkness

Biden, Trump cases aren’t alike. The political system doesn’t care.

Attorney General Merrick Garland appointed a special counsel Thursday to investigate the handling of classified documents by President Biden after his tenure as vice president ended in 2017. (Manuel Balce Ceneta/AP)

Adam Kinzinger, the former Illinois Republican House member, put it best: The political system, he said on CNN, doesn’t do nuance.

He was talking about the implications of the revelation that President Biden, like former president Donald Trump, had possession of classified documents from his days as vice president in locations where they were not authorized to be. Whatever the legal distinctions between the two cases — and there are many — they could be washed away in the political fallout.

As the legal machinery is cranking up, Americans are left with the reality that the two potential opponents in the 2024 presidential election will both be subjects of special counsel probes as their campaigns take shape. And as Kinzinger so aptly noted, for the time being at least, legal distinctions could be lost in the political debate that will follow.

The Biden case has unfolded rapidly — at least in the public arena. It is now known that classified documents have been discovered at the offices of the Penn Biden Center for Diplomacy and Global Engagement, a think tank in Washington; in the garage of Biden’s Wilmington, Del., residence; and in another location at the Wilmington house.

Timeline: Biden’s retention of classified documents

The first batch was discovered on Nov. 2, six days before the midterm election. Those in the Biden garage were found on Dec. 20. Lawyers for the president revealed on Thursday that another document had just been found in a room adjacent to the garage at Biden’s Wilmington home. Biden said the garage, which is where his Corvette is stored, is locked.

Hours after that last revelation, Attorney General Merrick Garland announced that he was appointing Robert K. Hur, a former top Justice Department official and U.S. attorney in Maryland, as special counsel to investigate the matter. Garland seemingly had no choice but to appoint a special counsel, however different the facts turn out to be from the investigation into the Trump documents.

Timeline: Trump and the Mar-a-Lago documents:

The legal differences are potentially significant, although much less is known about the Biden case. What is known is that Trump had hundreds of classified documents at Mar-a-Lago, some with the highest classification. Biden had far fewer — about 10 at the Biden Penn Center office and a few more in Delaware. Biden said he was “surprised” to learn that the documents were in his possession, adding that he takes classified material seriously. He also said he has not asked about the contents of the documents found.

Another difference is that one of Biden’s personal lawyers discovered the documents and called the White House counsel. The documents were voluntarily turned over to the National Archives and Records Administration. Some of what was found was marked top secret. On Nov. 4, the inspector general at the National Archives contacted the Justice Department to alert officials about what had happened.

Ten days later, Garland asked John Lausch, the U.S. attorney in Chicago and a Trump appointee, to do a preliminary investigation, which led to Hur’s appointment on Thursday. Biden’s White House said he and his lawyers have been cooperating with the National Archives and the Justice Department and will continue to do so.

In contrast, officials at the National Archives repeatedly sought the return of documents from Trump and were rebuffed, leading to an FBI raid on Mar-a-Lago last summer. Even after Trump’s lawyers told the government no more classified documents remained at the former president’s residence, more were discovered. Among the issues in the Justice Department investigation into Trump’s documents is whether he or others obstructed justice.

Biden’s team has questions to answer, both to Hur’s team and to the public. So far, the president and his team have not been fully forthcoming. The classified documents were discovered before the midterm elections, but no one among Biden’s team said anything publicly at the time, even though Biden had used the investigation into Trump’s documents as a political talking point during the fall campaign, calling Trump’s possession of classified material “irresponsible.”

The rules for handling highly classified materials are clear. They are never to be moved from secure facilities. Prompt revelation before the election would have been embarrassing at the least and potentially politically damaging for the Democrats.

When CBS News reported last week that documents had been found at the Penn Biden Center, White House officials confirmed that story but did not reveal that other documents had been found at Biden’s residence, although that had been known for weeks. On Saturday, Richard Sauber, special counsel to the president, revealed that he had found an additional five documents at Biden’s house when he went there to look at the single document that had been found earlier.

These are other examples of a lack of transparency, although perhaps the White House felt it should not reveal facts about a Justice Department investigation. By the time the first story broke last week, Garland had received a recommendation from Lausch to appoint a special counsel.

More classified documents found at Biden’s Wilmington home, White House says

There will be much for Hur and his team to sort out in the investigation. The history of such probes suggests that it will be many months before the investigation has been completed and decisions about charging or not charging someone have been made. Some Biden defenders question the need for a special counsel in the absence of evidence of a crime. But the politics of the matter left Garland with no choice but to turn the matter over to a special counsel.

One other factor in all this is that Justice Department policy holds that a sitting president cannot be criminally indicted. A former president can be.

Trump and his allies have seized on the fact that Biden had classified material in his possession after leaving the vice presidency to suggest that the two cases are equivalent and that charging Trump but not Biden would be a miscarriage of justice.

Garland has been accused of a double standard, launching a high-profile raid against the former president in the middle of an election year while making no mention of the Biden documents ahead of the election or until it was reported in the media. Trump will use Biden’s possession of classified material as leverage to try to escape possible indictment.

Document discovery spotlights Biden’s frequent use of Wilmington home

Trump has accused Jack Smith, the special counsel overseeing the investigations into Trump’s possession of classified documents and his role in the Jan. 6, 2021, attack on the Capitol, of personal bias and wants him removed. He has stepped up those attacks in the past few days.

Meanwhile, some conservatives are questioning Hur’s evenhandedness because, when he was at Justice, he was involved in overseeing the investigation by Robert S. Mueller III into Russian interference in the 2016 election and possible collusion with the Trump campaign. Mueller’s investigation showed various contacts between Trump officials and Russians but found no criminal conspiracy.

The revelations about Biden’s possession of classified documents are a political gift to House Republicans, who spent the first week of the year arguing among themselves over the selection of Rep. Kevin McCarthy (R-Calif.) as House speaker in a display of chaos unlike any speakership election in more than a century.

House Republicans were already planning investigations into the Biden administration and into Biden’s son, Hunter. Now they have a new target. Republicans have the potential to overplay their hand, but for now, they have a pass to put Biden on the defensive — and shift attention away from their own disorderly conference.

Rep. Michael R. Turner (R-Ohio), who chairs the House Intelligence Committee, asked for a classified briefing about the matter by the end of the month. So too has Sen. Mark R. Warner (D-Va.), the chairman of the Senate Intelligence Committee.

Rep. James Comer (R-Ky.), who chairs the Oversight and Reform Committee, has gone further, asking the White House for all relevant documents and communications related to the documents by Jan. 24. On Friday, Rep. Jim Jordan (R-Ohio), who chairs the House Judiciary Committee, and Rep. Mike Johnson (R-La.) sent Garland a letter asking for executive branch documents and communications, indicating their determination to investigate as well.

At the Biden White House, where officials hope to use the year ahead to draw ever more attention to the positive impacts of the bipartisan infrastructure bill, the bipartisan Chips bill and the prodigious spending on climate initiatives approved on a party-line vote last summer, the documents saga is an unexpected setback — a clear distraction for which there is no outside adversary to blame.

Garland has tried to assure that the investigations, into Trump and now Biden, will be carried out by the book, that charging decisions will be based on the facts and the law. For defenders of Trump, the mere fact that classified material held by the former vice president, now president, ended up at a think tank and at Biden’s personal residence is all that matters. Which, regardless of what Garland says about investigative probity, thoroughly complicates the work of both special counsels.

More on Biden documents

The investigation: Attorney General Merrick Garland appointed a special counsel to investigate the handling of classified documents found at a former office and the Delaware home of President Biden. Here’s what led up to the investigation.

The timeline: A comprehensive look at when, where and how the two batches of classified documents were found. Here’s an explanation of what classified documents are and the penalties for mishandling them.

Who is Robert Hur? Hur, the former U.S. attorney in Maryland, will examine the handling of the classified documents found. As a top attorney at the Justice Department during the Trump administration, he was a key official overseeing and helping to manage the special counsel investigation into Russian election interference.

How Trump, Biden cases compare: There are key differences between the discovery of classified documents at Biden’s home and former office and Donald Trump’s retention of hundreds of classified documents at his Mar-a-Lago home in Florida. Here’s our fact checker. Nonetheless, the furor over the classified documents could make it harder for Democrats to blast Trump.

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