Special Counsel to Investigate Biden over Classified Docs
Attorney General Merrick Garland on Thursday appointed a special counsel to investigate classified documents dating from the Obama administration that were recently discovered at President Joe Biden’s home and office. First reported Monday, revelations about Biden’s illegal possession of classified documents have gradually unraveled all week long, with classified information discovered in a third location on Thursday. The most widely debated angle to the story is over the similarities and differences with former President Trump’s illegal possession of classified documents, which the FBI recovered from Mar-a-Lago in August.
First Classified Documents Reported at Biden’s Office
CBS News broke the story on Monday that “what appear to be Obama-Biden administration records, including a small number of documents with classified markings” were discovered “at the Penn Biden Center in Washington, D.C.,” according to Richard Sauber, special counsel to the president. “The President’s personal attorneys were packing files housed in a locked closet to prepare to vacate office space,” and found the documents on November 2, 2022, before the midterm election. They turned the documents over to the National Archives the next day but did not publicly disclose these facts until news broke Monday.
The Penn Biden Center for Diplomacy and Global Engagement opened at 101 Constitution Avenue NW, in early 2018, in a newly renovated, 13,800 square-foot custom suite. At the time, Joe Biden was the University of Pennsylvania’s professor of presidential practice. Sauber noted that Biden “periodically used this space from mid-2017 until the start of the 2020 campaign.” The New York Post reported that at least 10 top Biden officials worked at the Center, including Secretary of State Anthony Blinken.
The address is “the closest privately-owned office building to U.S. Capitol,” totaling 516,000 square feet; it is jointly owned by the United Brotherhood of Carpenters and Joiners of America and J.P. Morgan Global Alternatives. Google Maps currently lists 63 organizations at the address, including the National Mining Association, Goldman Sachs, the National Indian Health Board, Exelon, Ameresco, and Honeywell. In other words, the building is prime real estate for well-funded lobbyists seeking an audience on Capitol Hill. Its prime location across the street from the Capitol complex would give Biden close access to members of Congress as he contemplated his return to politics.
But prime real estate charges steep rents. Now that Joe Biden was back in office, the Penn Biden Center no longer needed office space so close to Capitol Hill at exorbitant rents — hence the preparations to vacate office space. (It is strange that it took nearly two years, but many office buildings in downtown D.C. stood practically empty throughout 2020-2021 due to cushy, pandemic-related, remote-work provisions. Perhaps with workers returning to the office, rents were scheduled to rise.)
AG Garland assigned the U.S. attorney in Chicago to review the 10 classified documents in the Penn Biden Center. The documents included U.S. intelligence memos and briefing materials on Ukraine, Iran, and the U.K., dated from 2013-2016. Phill Kline, former attorney of Kansas and now professor at Liberty University School of Law, pointed out on “Washington Watch” that these documents may be connected to the business dealings of Joe Biden’s son, Hunter. “At the same time” that these documents sat in Biden’s think tank, he said, “Hunter Biden [was] on the Burisma board in the Ukraine receiving funds, and Hunter Biden [was] negotiating investment deals with members of the Chinese Communist Party.”
Kline added that the Chinese influence was particularly concerning. When the first classified documents were discovered in November, “Attorney General Garland would know that the University of Pennsylvania had received over $60 million from Chinese sources” because the DOJ was “investigating Chinese influence on U.S. campuses.” In fact, UPenn faculty were instrumental in shutting the DOJ’s investigation down, Kline said. “The University of Pennsylvania wrote a letter to Merrick Garland this past year asking that he end this investigation into Chinese influence on academic campuses in America, calling it racist. And Garland complied.”
These facts, revealed in a steady drip all week, created a firestorm of controversy. For instance, Rep. Jim Banks (R-Ind.) tweeted, “Classified documents were found at Joe Biden’s think tank before the midterms. Why are we just finding out now?” House Committee on Oversight and Accountability Chairman James Comer (R-Ky.) opened an investigation into the cache of documents on Wednesday; among other things, he plans to get to the bottom of the Chinese funding. But in the first maelstrom, many of the first hot takes were overtaken by further revelations.
Second Batch of Classified Documents Reported at Biden’s Home
On Thursday, NBC News reported that Biden aides had discovered a second batch of classified documents at his home in Wilmington, Delaware. These documents were found on December 20 in a locked garage alongside Biden’s Corvette. On January 12, aides found another classified document “among stored materials in an adjacent room,” according to a further statement by Sauber.
Sauber explained that these documents were all found during a search of the president’s Wilmington and Rehoboth Beach residences, “locations where files from his Vice-Presidential office might have been shipped in the course of the 2017 transition.” Sauber said that “no documents were found in the Rehoboth Beach residence.”
However, it’s unclear why any vice presidential files would be shipped to Biden’s private residence. According to the Presidential Records Act (44 U.S.C. Chapter 22), vice presidential records must be treated in the same way as presidential records. Namely, the U.S. “shall reserve and retain complete ownership, possession, and control of Presidential records.” Specifically, when a president’s last term concludes, “the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President.” By law, all vice presidential records should have been delivered to the National Archives, not Biden’s Wilmington garage.
Reporter Peter Doocy challenged President Biden on Thursday, “Mr. President, classified material next to your Corvette — what were you thinking?” In the bizarre exchange that followed, Biden was clearly on the defensive, talking far more about his Corvette than about the economy, which is what he planned to discuss. “By the way, my Corvette’s in a locked garage, okay? So, it’s not like they’re sitting out in the street,” the president said. Doocy followed up, “So, the material was in a locked garage?” Biden answered, “Yes, as well as my Corvette.”
“But as I said earlier this week,” continued Biden, “people know I take classified documents and classified material seriously.” Sure. Go into any garage in America, and you’ll find the owner keeps the documents they take most seriously right next to their Corvette. Setting aside the unfalsifiable words “people know” (which people? how do they know?), such a claim has exactly the same strength as the speaker’s reputation for honesty and trustworthiness. The speaker was President Joe Biden.
White House Press Secretary Karine Jean-Pierre tried to anchor the narrative with the same line in her Thursday press briefing, reading from another statement by Sauber, “As the President said, he takes classified information and materials seriously.” But the press briefing quickly got out of hand, with nearly every reporter taking a swipe at the issue. According to the transcript, the word “classified” was used 35 times and “documents” was used 89 times in one hour.
Rep. Hank Johnson (D-Ga.) tried a different tactic to redirect the narrative. “I'm also aware of the fact that things can be planted on people,” he said. “Things can be planted in places and then discovered conveniently. That may be what has occurred here. I’m not ruling that out.” For his theory to work, someone would have to 1) steal the documents from Biden while he was vice president, 2) obtain access to Biden’s locked garage, and 3) sneak the documents past Secret Service to plant them. That’s only slightly more likely than suggesting that, if you plant classified documents, a classified-document tree will sprout.
Special Counsel Appointed
After news broke about the discovery of documents at Biden’s home, Garland appointed a special counsel to investigate the “possible unauthorized removal and retention of classified documents or other records discovered at the Penn Biden Center for Diplomacy and Global Engagement and the Wilmington, Delaware, private residence of President Joseph R. Biden Jr.” He chose Robert Hur, a U.S. attorney appointed by former President Trump.
But the timing of his announcement raised some eyebrows. “They knew this happened to President Biden before the election, but they kept it secret from the American public,” said House Speaker Kevin McCarthy (R-Calif.). Family Research Council President Tony Perkins asked Kline on “Washington Watch” whether “this announcement of a special investigator and the special counsel was timed to try to head off the Republican House from investigating.” “It is,” Kline responded. “And it’s to get the American public off his back.”
Kline is concerned — not only with the timing — but with the scope of the special counsel’s investigation. “[Garland] has not released a scope letter … for the investigation. If the investigation is solely about whether those documents should have been there, you’re not going to see anything serious result,” he said. “Compare this scope letter with the scope letter of Trump’s special prosecutor, which says, ‘Investigate all things Trump.’” Instead, the prosecutor should be asking “every reasonable question that can be inferred from the facts that we know,” said Kline.
If the appointment was intended to preclude investigations by House Republicans, it has failed to achieve its desired effect. In addition to the Oversight Committee’s investigation announced Wednesday, on Friday Rep. Mike Johnson (R-La.) and Rep. Jim Jordan (R-Ohio) announced that the House Judiciary Committee would investigate “the Justice Department’s actions with respect to then-Vice President Biden’s mishandling of classified documents” in a letter to Garland. The actual effect of the appoint is that, as the editors of National Review summarized it, “the sitting president of the United States is now, formally, the subject of a criminal investigation.”
Meanwhile, Senate Majority Leader Chuck Schumer (D-N.Y.) implied Friday that House Republicans should not interfere with the special counsel. “The prosecutors will get to the bottom of this, and let’s let them do it, for God’s sake,” he said on CNN’s “This Morning.” His plea began with a note of absurdity and ended with a note of desperation. When has a special counsel gotten to the bottom of any matter? Ah, but the desperation explains it. Schumer desperately doesn’t want the House GOP questioning Biden officials about the mismanagement of documents, which might create unfortunate parallels to Trump’s situation.
Former President Trump’s mishandling of documents provides the background that has hyper-charged this week’s revelations about President Biden. Even as the mainstream media has run with the story — how could they resist? — they have also worked overtime to distinguish his situation, as a former vice president, from that of former President Trump. The Hill, The Washington Post, and CNN all ran pieces with that aim, to name a few.
National Review analyst and former federal prosecutor Andrew McCarthy suggests this new development complicates the politics of prosecuting President Trump. “Long before the latest Biden revelation,” he writes, “Trump’s best shot at not being charged was the Hillary Clinton precedent.” That precedent is, people famous and powerful enough to run for president get a pass for mishandling classified information — a federal crime. But, with the DOJ investigating both Trump and Biden simultaneously, it can hardly charge one and not the other without appearing to play political favorites. Both have declared plans to run for president in 2024. The million-dollar question is, is the DOJ willing to charge Biden in order to get Trump?
Unfortunately, there’s a much deeper precedent for top officials avoiding conviction, even when they commit crimes for which ordinary employees receive jail time. National Review’s Jim Geraghty finds at least four lower-level employees who got jail time for mishandling classified information in the last six years, while as many top officials have gotten off since 2000. Perkins called it “a two-tiered system of justice” when the powerful escape the consequences of the law, particularly when there appears to be political favoritism at play.
One possible intervening factor is the comparative seriousness of the crimes. After all, the DOJ could use prosecutorial discretion and dismiss a lesser crime to prosecute a more serious one. And not surprisingly, there has been an overwhelming amount of finger-pointing and “whataboutism” over whether Trump’s or Biden’s mishandling was worse. So, it could depend on whose crime was more serious.
For a non-expert, sorting through the complex timelines and curated presentation of facts can be downright confusing. Here are a few indisputable facts. 1) President Trump kept far more classified documents; the FBI recovered more than 100 from Mar-a-Lago, while we know of, at most, a couple dozen documents in Biden’s possession. 2) President Trump actively resisted turning over the documents, while President Biden’s lawyers voluntarily returned them upon discovery. 3) President Biden kept the documents longer. He left the vice president’s office four years before Trump left the president’s office, and his classified documents were returned after Trump’s. 4) Both have no excuse for possessing the documents. Some parties have tried to justify both men by saying the classified documents were mixed up with others. But the documents they were mixed with were also government records they should have surrendered to the National Archives. 5) Someone is responsible for taking classified documents out of secure facilities into unsecure ones (“locked” garages don’t count). As Andrew McCarthy writes, “Government records did not walk to Biden’s private office and end up in a closet there on their own.”
The classified document scandal is a convoluted, muddy mess. It seems there is plenty of guilt to go around, and insufficient transparency from DOJ investigators. Let’s pray (1 Timothy 2:2) that the special counsels investigating this situation actually do arrive at the facts and have the courage to prosecute the guilty parties, no matter who or how powerful they are.
Joshua Arnold is a staff writer at The Washington Stand.