The Washington PostDemocracy Dies in Darkness

Inside the White House document strategy and its pitfalls

Biden aides are said to have tried to defer to DOJ, lie low and avoid Trump-like behavior. They got a political firestorm — and then a special counsel.

President Biden makes his way to the Oval Office this week. (Demetrius Freeman/The Washington Post)

One of President Biden’s personal attorneys entered the luxurious 10-story office building, so near the U.S. Capitol that its promoters billed it as “the front seat to power,” on a Wednesday last November to begin what seemed a mundane task: clearing out a rarely used office that Biden occupied after leaving the vice presidency.

The attorney, Pat Moore, went through a large closet and found nothing out of the ordinary, a person familiar with the matter said, speaking on the condition of anonymity to discuss an ongoing investigation. Then he tackled a smaller closet, finding it stuffed with folders, boxes and other political memorabilia, including documents related to Beau Biden’s funeral, drafts of political speeches and boxes of personal books, the person said.

But next, Moore made a surprising discovery: a folder with a cover sheet saying it contained secret government documents. Moore immediately called another attorney and notified the White House Counsel’s Office, which in turn contacted the National Archives, according to two people familiar with the matter.

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)

But if the way they found the classified documents was out of the ordinary, Biden’s lawyers were determined to be sticklers for the rules once it happened, said people familiar with their work.

Those first decisions inside the airy office complex at the Penn Biden Center at 101 Constitution Ave. NW launched a 71-day push by Biden’s team, federal archivists and the Justice Department to make sense of the startling discovery. It culminated in Attorney General Merrick Garland’s decision, to the deep consternation of many in the White House, to appoint a special counsel.

Interviews with people directly involved in the discovery and the subsequent fallout provided new details on the effort to handle the crisis created at the intersection of politics, intelligence and the law. Republicans and other critics say the White House was, at a minimum, slow to seek the truth and level with the public; Biden’s aides say they were simply proceeding cautiously in a sensitive probe and taking their lead from federal investigators.

In mid-November, in a communication that has not previously been reported, a senior official in the Justice Department’s national security division wrote a letter to Bob Bauer, Biden’s personal attorney, asking for his cooperation with the department’s inquiry. The Justice official asked specifically that Biden’s legal team secure the materials from the Penn Biden Center and refrain from further reviewing them or other relevant documents that might be stored at different locations, according to the letter, the contents of which were shared with The Post.

The Justice official also requested that Bauer give the Justice Department formal consent to review the Penn Biden materials, and that he provide a list of other locations where relevant materials might be stored as the department weighted the proper protocols for future document searches.

That letter, with its implication that the Justice Department would take the lead in the inquiry, paved the way for the Biden team’s approach: They adopted a strategy of caution and deference, making only limited moves in coordination with federal investigators to determine the number of documents involved, their significance and how they were mishandled. They hoped that would earn the trust of investigators, avoid comparisons with former president Donald Trump, who is under federal criminal investigation for his own mishandling of classified materials, and end the matter quickly. Instead, it yielded a political firestorm and repeated accusations of obfuscation, and instead of a speedy resolution, they now face a special counsel probe.

Former senator Doug Jones (D-Ala.) said that the Biden team was right to notify authorities quickly of its discoveries, adding that it was critical to respond appropriately from a legal perspective. Still, he added, the White House could have been more transparent with the public.

“I would have probably opted to do some things a little bit differently,” said Jones, a onetime prosecutor. “When it came the appropriate time to make a statement, give as much facts as you can without jeopardizing the investigation.”

After the Biden White House alerted the National Archives, it did make initial moves to learn how the classified documents had reached the Penn Biden Center and possibly elsewhere, according to two people familiar with the process who spoke on the condition of anonymity because of the ongoing investigation. But by Nov. 10, a day after Biden held a celebratory news conference touting Democrats’ strong midterm election results, the Justice Department informed Biden’s lawyers it was launching its own inquiry and within weeks would be sitting down with Biden aides for interviews, according to two people familiar with the process.

At that point, Biden’s attorneys stopped seeking information from his staffers, seeking to avoid any impression they were tampering with witnesses, the people said. Instead, they switched abruptly into a highly cautious mode, deferring almost completely to the federal investigators.

Among other things, Biden’s top aides were keenly aware that Trump had spent months defiantly refusing to return classified documents, insulting investigators and apparently misleading them when his lawyers claimed to have returned all classified records this past summer. The last thing Biden’s supporters would have wanted, legally or politically, was to prompt a seemingly parallel probe — but in one key respect, that is what happened.

A shared desire to keep quiet

Early on, Biden’s attorneys and Justice Department investigators both thought they had a shared understanding about keeping the matter quiet. But they had very different reasons.

The White House was hoping for a speedy inquiry that would find no intentional mishandling of the documents, planning to disclose the matter only after Justice issued its all-clear. Federal investigators, for their part, typically try to avoid complicating any probe with a media feeding frenzy.

Deputy Attorney General Lisa Monaco declined at a news conference on Wednesday to say whether law enforcement officials suggested Biden representatives should keep quiet about the case. But the approach would end up prompting accusations that Biden’s team had purposely kept the public in the dark.

Biden’s aides sought to follow the Justice Department’s guidance, heeding its protocols for conducting searches and reporting additional discoveries, said the two people familiar with the probe. Some at the White House remain furious at Garland and other Justice Department officials, saying the attorney general named a special counsel to pursue Biden even after they did everything his department asked.

Despite the consultation between the Justice and Biden teams, six weeks elapsed before Biden’s attorneys discovered additional documents at his Wilmington home.

There was a lot to comb through. When Biden left the vice presidency, he received temporary office space where he and his aides were supposed to separate personal papers from the official records that, under the Presidential Records Act, must go to the National Archives.

After six months, the Archives typically takes custody of the classified material. At the time, Biden was renting a 12,000-square-foot house in McLean, Va., where he kept a private office. But in February 2018, the Penn Biden Center officially opened, providing another space for him to use.

The center, created with the University of Pennsylvania, was a think tank and academic hub intended as a sort of professional home for Biden now that he had left public life, or so it seemed at the time.

As attention focuses on the documents’ path from the vice president’s office to the Penn Biden Center, Biden’s longtime executive assistant Kathy Chung has confided to associates that she is distressed that she might have inadvertently been involved in moving or storing classified material at the center, planting the seeds of the current uproar, according to a person briefed on her account.

Bill Taylor, Chung’s lawyer, declined to comment.

Chung became Biden’s executive assistant after the president’s son, Hunter, alerted her to the vacant post. Chung had worked on Capitol Hill, and Ted Kaufman, the president’s longtime confidant and former chief of staff, recommended her for the job, according to the person briefed on her account.

The garage discovery

Biden had just returned to Washington from a long pre-Christmas weekend in Delaware when his personal attorneys began another search, seven weeks and 110 miles from the first.

This time the lawyers were looking in Biden’s garage in Wilmington, located at the bottom of a long driveway. It’s where Biden stores his prized 1967 Corvette. The garage, in footage captured during his campaign, had multiple cardboard boxes and a lampshade sitting off to the side.

Discovery spotlights Biden's frequent use of Wilmington home

Biden had been kept up to speed, and he had to sign off on searches of his personal property, according to a person familiar with the process. But he was also surprised by the discoveries, aides say. He had dealt with classified material for decades and considered himself a stickler for the rules on such matters. When he was writing a book after leaving the vice presidency, he made the trip to the National Archives to review relevant documents, staying on-site to pore through them, an official said.

When his lawyers searched the garage, they found what they called “a small number” of records with classified markings. Once they made that discovery, they alerted the team headed by John Lausch, the U.S. attorney overseeing the Justice Department’s inquiry, and immediately stopped searching, according to a timeline Bauer released Saturday.

Veterans of cases involving classified records question the seeming lack of urgency in searching Biden’s home, especially why it took six weeks after the discovery at the Penn Biden Center to expand the search to another location.

But people familiar with the case say that during that stretch — roughly between Nov. 4 and Dec. 20 — federal investigators and Biden’s personal attorneys were in fact busy, communicating frequently about protocols for how to identify other classified records. They conducted follow-up searches at multiple locations, the people say, a fact not previously reported.

Chung was interviewed by Lausch’s investigative team on Jan. 4, according to a person familiar with her account. While she was involved in the records found at the Penn Biden Center, she had no connection to those sent to Biden’s Wilmington home, said the person, who spoke on the condition of anonymity to discuss sensitive matters.

On. Jan. 5, Lausch, who was about to leave the Justice Department, briefed Garland on the results of his investigation and suggested the attorney general appoint a special counsel, according to Garland. Garland, by his own account, agreed.

Public revelations, more searches

The drama was still unfolding out of the public eye, with only a tight circle of White House advisers aware of it. Those advisers crafted a statement shortly after the documents were first discovered in November, in case news of that finding leaked, according to a person familiar with the deliberations. But that statement would go unused.

Biden’s top aides were determined that the legal process would override any political moves or public messaging, not the other way around. They did not want to be seen as trying to shape the investigation’s outcome, according to people familiar with their approach.

“This is a rule-of-law administration,” said one top official, speaking on the condition of anonymity to discuss a sensitive matter. “We are serious about it. We don’t comment on ongoing investigations. So we were always walking a fine line here, in that we were in one.”

But this was not a run-of-the-mill legal process; it involved the handling of sensitive information by the president of the United States. And it was unfolding against a highly polarized political backdrop, as Republicans had just seized control of the House.

Soon enough, the discoveries broke into the open, and the White House initially provided an incomplete picture of the investigation.

CBS News was the first news organization to learn of the matter, contacting the White House on Jan. 6 to ask about the Penn Biden Center documents. White House officials confirmed the scoop, but since the investigation was ongoing, they decided not to offer any additional details — including the critical information that a second batch of documents had been discovered at Biden’s home.

A few days later, just after 5 p.m. on Jan. 9, CBS News aired its report. Biden was in Mexico at the time for a summit, and his motorcade — filled with top advisers, some of whom had worked with him at Penn Biden — was arriving at the National Palace in Mexico City.

By happenstance, Garland, who days earlier had been advised to name a special counsel, was on the trip to Mexico and in the president’s motorcade. But most of those traveling with Biden were blindsided by the story.

The next day, Biden told reporters he was “surprised” about the documents found in his office, making no mention of those at his Wilmington house. That reflected a decision by Biden’s advisers to only react to what was publicly known, not to elaborate or provide additional information, for fear of appearing to infringe on the Justice Department’s work.

Even some of Biden’s top officials had been kept in the dark; White House press secretary Karine Jean-Pierre, pressed repeatedly about the documents by reporters, struggled to provide clear-cut answers.

“There’s no way for me to talk about the documents if he has said he doesn’t know what’s in them,” Jean-Pierre said. “And we’re just going to allow the process to continue.”

The same day, Jean-Pierre was asked if she could provide assurances that no more classified documents would be found, and she declined to answer. The same evening, The Washington Post and other outlets reported that Biden’s lawyers had indeed found more documents, at the Wilmington home.

On Jan. 11, Biden’s personal attorneys went back to Wilmington to continue their search. As they sifted through documents in a room next to Biden’s garage, they found a page with classified markings. Leaving it there, they moved on to other parts of the house, according to Bauer’s timeline.

Then the Biden attorneys traveled to the president’s vacation home in Rehoboth Beach, Del. No classified records were found at the beach house, and the attorneys late in the evening made it back to Washington, Bauer’s timeline said.

Special counsel appointment

In the morning, Biden’s lawyers informed Justice investigators of the additional document in Wilmington, according to timelines offered by both Garland and Biden’s personal attorneys. The White House also released a statement acknowledging for the first time publicly that a second batch had been found in the Wilmington garage.

About 20 minutes after that statement from the White House, Biden held an event to tout improving economic numbers. As soon as he finished, he was asked about the additional classified documents, and why they were found next to his prized Corvette.

“By the way, my Corvette is in a locked garage. Okay? So it’s not like they’re sitting out in the street,” Biden fired back.

Adding that he was cooperating with the Justice Department, Biden reflected his staffers’ hope that the department would soon clear him. “I’m going to get a chance to speak on all this, God willing, soon,” he said.

Instead, Garland about two hours later took the stage at the Department of Justice, announcing that he was appointing former U.S. attorney Robert K. Hur as special counsel to investigate the Biden document matter.

Who is Robert Hur?

At the time that Garland was delivering those remarks, Biden was en route back to the White House after delivering a eulogy at the funeral of Ash Carter, the former secretary of defense.

Biden and his aides find the comparisons to Trump particularly frustrating, according to one person who has been in touch with White House officials and spoke on the condition of anonymity to discuss private conversations.

The Biden team feels “the two situations could not be more different,” the person said. Biden and his aides believe they have handled the situation appropriately, instantly informing and cooperating with authorities, while Trump knowingly took classified documents and repeatedly refused requests to return them.

While some of Biden’s aides and allies chafe at Garland’s appointment of a special counsel, believing it creates a false equivalence between the Trump and Biden cases, other allies have said they believe the investigations will ultimately confirm how cooperative and serious Biden and his team have been about an honest mistake.

Some Biden supporters are critical of his lawyers, saying they should have been as transparent as possible before the matter leaked. Still, Matt Miller, who was a spokesman for the Obama Justice Department, said it can be hard to speak out in such situations, for legal reasons.

“Oftentimes when you’re doing something that from the outside doesn’t appear to make sense, it’s not because you don’t know what you’re doing — it’s because you face some choices people don’t understand,” Miller said.

Several Biden aides now regret that initial strategy, recognizing it has made them appear less than transparent, said one former White House official, speaking on the condition of anonymity to talk candidly.

Biden’s team is now trying to shift to a more proactive approach, as reflected in its decision to hold a media call on the documents issue Tuesday.

“They clearly have lines they’re not going to cross over,” the former official said. “But it was an indication that last week can’t be the case study for how they proceed.”

But the White House strategy has undeniably led to cascading revelations of the sort that crisis managers say to avoid. Last Thursday, just after Garland appointed the special counsel, Justice Department officials found five more classified documents in the room adjacent to Biden’s garage.

Meanwhile, an Amtrak ride away, that Penn Biden Center office that Moore had first gone to empty in the first place back in November has remained uncleared.

Devlin Barrett and Perry Stein contributed to this report.

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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