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Here’s what we know about the classified documents found at Biden’s home and office

By: Becky Sullivan | Elena Moore | NPR
Posted on: Saturday, January 14, 2023

WASHINGTON, D.C. (NPR) — President Biden is facing a Department of Justice investigation after his lawyers found classified documents at his Delaware residence and an office in Washington, D.C.

On Thursday, Attorney General Merrick Garland appointed former Justice Department official Robert Hur to lead the DOJ probe.

“This appointment underscores for the public the department’s commitment to both independence and accountability in particularly sensitive matters, and to making decisions indisputably guided only by the facts and the law,” Garland said Thursday.

The announcement comes three days after news broke that classified documents had been found at Biden’s private office in November less than a week before the midterm elections – a discovery that led the DOJ to launch an initial inquiry.

In response to Garland’s announcement Thursday, the White House said it has “cooperated closely” with the DOJ during its review and plans to continue working with Hur’s special counsel investigation, according to a statement from Richard Sauber, a lawyer for the president.

“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,” according to the statement.

On Friday, White House press secretary Karine Jean-Pierre said Biden “takes classified information, classified documents very seriously” and that his office will cooperate with the special counsel as it has been doing with the Department of Justice.

Here’s what we know about the Biden documents so far:

On three occasions, classified documents were found at Biden’s private residence and a D.C. office he used before becoming president

Early last November, Biden’s personal lawyers were packing files from his one-time office at the Penn Biden Center for Diplomacy and Global Engagement, a think tank founded in 2018 by the University of Pennsylvania where Biden served as a fellow and professor before he became president.

There, in a “locked closet,” the White House says, they discovered some files that were marked as classified, even though the office had not been authorized for the storage of classified documents. The documents were quickly turned over to the National Archives.

Then, on Nov. 4, the National Archives inspector general informed the Department of Justice of the discovery. In mid-November, Garland tapped John Lausch, a Trump-appointed U.S. Attorney in Chicago, to begin an initial investigation.

In December, after a review that began after the November discovery, Biden’s personal counsel Robert Bauer informed Lausch that another set of documents had been found in the garage of Biden’s private home in Wilmington, Del. Those documents were soon secured by the FBI.

Finally, on Wednesday night, Biden’s team discovered one more classified document at Biden’s Wilmington home.

The White House says it was unintentional and that they will cooperate fully

Biden has said that he takes the handling of classified information seriously and that he is “cooperating fully and completely” with the Justice Department.

“They found some documents in a box in a locked cabinet, or at least a closet. And as soon as they did, they realized there were several classified documents in that box. And they did what they should have done,” Biden said earlier this week, after the first reports about the documents in the D.C. office.

On Thursday, after reports that more documents were discovered at his Delaware garage, Biden turned defensive when pressed by a reporter. “My Corvette’s in a locked garage. OK? So it’s not like they’re sitting out in the street,” he said.

The White House says Biden does not know the content of the documents.

Still, the White House was hardly forthcoming about the existence of a second set of documents. When it confirmed the first discovery in the D.C. office, there was no mention of the second batch recovered in Delaware. It was only after news reports that revealed the later discovery did the White House acknowledge it.

We don’t know what was in the documents, or how many were found

The documents are classified, so they have not been publicly described, beyond that they were records that dated to Biden’s time as vice president during the Obama administration.

A special counsel will oversee the investigation

On Thursday, Attorney General Merrick Garland appointed a special counsel to take charge of the DOJ’s investigation, calling the events “extraordinary circumstances.” The investigation will be conducted following the department’s rules, but the special counsel operates independently of day-to-day oversight from the Justice Department — an arrangement designed to avoid even the suggestion of interference.

Robert Hur, the special counsel, is a longtime prosecutor who served, at the appointment of then-President Donald Trump, as U.S. Attorney for the District of Maryland from 2018 to 2021. He has previously worked on a variety of national security, public corruption and corporate fraud cases.

“This appointment underscores for the public the Department’s commitment to both independence and accountability in particularly sensitive matters, and to making decisions indisputably guided only by the facts and the law,” Garland said Thursday.

The Hur appointment follows Garland’s decision last November to tap former war crime prosecutor Jack Smith as special counsel in a pair of cases involving former President Trump, including his handling of classified documents at Mar-a-Lago.

Critics have accused Biden of hypocrisy and say he should have publicized the discovery sooner

Critics of Biden, including many Republicans, have seized on the revelations to raise new complaints about the Biden administration’s handling of the Trump classified document saga, including the FBI raid of Mar-a-Lago.

“Another faux pas by the Biden administration by treating law differently based upon your political beliefs. Treats President Trump one way but treats President Biden a whole different way,” said Republican House Speaker Kevin McCarthy in a press conference Thursday.

McCarthy and others have also said that Biden should have disclosed the discovery sooner: The first documents were discovered on Nov. 2, just six days before last fall’s midterm elections.

Republicans have already vowed to use their new House majority to probe Biden’s handling of the classified documents and how federal agencies responded.

On Friday, Republican House Judiciary members sent a letter to the attorney general announcing their inquiry into the handling of the documents and the appointment of Hur. Rep. Jim Jordan, R-Ohio, chair of the House Judiciary Committee, and Rep. Mike Johnson, R-La., demanded “all documents and communications” between the DOJ, FBI and White House related to the “mishandling of the classified documents” and the appointment of the special counsel.

And Trump himself has hammered Biden over the documents on his social media site Truth Social. “When is the FBI going to raid the many homes of Joe Biden, perhaps even the White House? These documents were definitely not declassified,” he wrote Monday.

There are parallels with the Trump classified documents saga, but the two situations are not identical

The Presidential Records Act requires that all presidential (and vice presidential) documents be turned over to the National Archives upon the end of an administration. Other rules govern the storage of classified documents.

Now, both presidents have run afoul of those rules.

But from what we know so far, there are already important differences between how the two have handled their respective situations.

In the case of former President Donald Trump, the National Archives was the first to identify the missing documents and request their return.

Trump initially resisted returning them, and his lawyers at times misled federal investigators. After months of back-and-forth between the government and Trump aides, 15 boxes of documents were returned in January 2022. According to the FBI, the boxes included 184 classified documents, including 25 marked “Top Secret,” as well as others denoted with labels indicating they contained national security information, such as “FISA.” But more documents still remained at Mar-a-Lago, and ultimately the FBI raided the resort in August to retrieve the rest.

By contrast, Biden’s team appears to have found what Sauber described as a “small amount” of documents first, then returned them to the federal government promptly.

Still, the revelations about improperly stored documents and the appointment of a special counsel are an “embarrassment” to the Biden administration, said Leon Panetta, who served as White House chief of staff during the Clinton administration and as Secretary of Defense under President Obama

“It’s both an embarrassment and damaging to the credibility of the White House, because obviously the president has criticized former president Trump and the way he handled classified documents at Mar-a-Lago,” Panetta said in an interview with NPR.