President Joe Biden speaks during a White House event to mark the second anniversary of the Jan. 6 attack on the Capitol, in Washington on Friday, Jan. 6, 2023.
By PETER BAKER, CHARLIE SAVAGE, GLENN THRUSH and ADAM GOLDMAN
President Joe Biden’s lawyers discovered “a small number” of classified documents in his former office at a Washington think tank last fall, the White House said earlier this week, prompting the Justice Department to scrutinize the situation to determine how to proceed.
The inquiry, according to two people familiar with the matter, is a type aimed at helping Attorney General Merrick Garland decide whether to appoint a special counsel, like the one investigating former President Donald Trump’s hoarding of sensitive documents and failure to return all of them.
The documents found in Biden’s former office, which date to his time as vice president, were found by his personal lawyers on Nov. 2 when they were packing files at the Penn Biden Center for Diplomacy and Global Engagement, according to the White House. Officials did not describe precisely how many documents were involved, what kind of information they included or their level of classification.
The White House said in a statement that the White House Counsel’s Office notified the National Archives and Records Administration on the same day the documents were found “in a locked closet” and that the agency retrieved them the next morning.
Biden had periodically used an office at the center from mid-2017 until the start of the 2020 presidential campaign, and the lawyers were packing it up in preparations to vacate the space. The discovery was not in response to any prior request from the archives, and there was no indication that Biden or his team resisted efforts to recover any sensitive documents.
Garland has assigned John R. Lausch Jr., the U.S. attorney in Chicago who was appointed by Trump, to look into the matter, according to two people familiar with the decision, confirming a CBS News report. Lausch has been scrutinizing the situation since November, according to one of the people, who spoke on the condition of anonymity to discuss a sensitive matter.
Two people familiar with the matter said that Lausch has been conducting a so-called initial investigation under a Justice Department regulation that allows an attorney general to appoint a special counsel, a special prosecutor who operates with a measure of day-to-day independence to conduct a particularly sensitive investigation.
Under the regulation, an initial investigation consists of “such factual inquiry or legal research as the attorney general deems appropriate” to “be conducted in order to better inform the decision” about whether a matter warrants the appointment of a special counsel.
The White House statement said that it “is cooperating” with the department but did not explain why Biden’s team waited more than two months to announce the discovery of the documents, which came a week before the midterm congressional elections when the news would have been an explosive last-minute development.
It also came shortly before Garland’s Nov. 18 appointment of Jack Smith as a special counsel to take over the criminal investigation into Trump’s failure to return a large number of classified documents that were sent to his Florida residence and club, Mar-a-Lago, when he left office — even after being subpoenaed.
At the time, Garland cited the fact that Trump had just announced he was running for president again, and that Biden had indicated that he is likely to run as well, as justification to transfer control of the investigation to Smith. (An attorney general retains final say over whether anyone is charged with a crime by a special counsel.)
Trump jumped on Monday’s disclosure. “When is the FBI going to raid the many houses of Joe Biden, perhaps even the White House?” he wrote on his social media platform, Truth Social. “These documents were definitely not declassified.”
That appeared to refer to Trump’s disputed claim that before leaving office he declassified all the documents the FBI found when it searched Mar-a-Lago in August. No credible evidence has emerged to support that claim, and his lawyers have resisted repeating it in court, where there are professional consequences for lying. In any case, the potential charges the FBI cited in its search warrant affidavit do not depend on whether intentionally mishandled documents were classified.
But while Trump tried to suggest a parallel, the circumstances of the Biden discovery as described appeared to be significantly different. Biden had neither been notified that he had official records nor been asked to return them, the White House said, and his team promptly revealed the discovery to the archives and returned them within a day.
“The documents were not the subject of any previous request or inquiry by the archives,” Richard Sauber, a special White House counsel, wrote in the statement. “Since that discovery, the president’s personal attorneys have cooperated with the archives and the Department of Justice in a process to ensure that any Obama-Biden administration documents are appropriately in the possession of the archives.”
By contrast, in 2021 the archives repeatedly asked Trump to turn over large numbers of documents it had determined were missing. He put the agency off for months, then allowed it to retrieve 15 boxes of material in early 2022, including scores of classified documents, but it was later discovered that he kept more.
Eventually, the Justice Department obtained a grand jury subpoena for documents with classification markings remaining in Trump’s possession, and a lawyer for Trump turned over several more and told the department there were none left. But an August search by the FBI found 103 more marked as classified — along with thousands of other official records.
The search warrant affidavit that the Justice Department submitted suggested that Trump was under investigation for obstruction, along with possible violations of the Espionage Act, which criminalizes the willful unauthorized retention of national security documents and failure “to deliver them on demand” to a government official entitled to take custody of them.
Still, whatever the legal questions, as a matter of political reality, the discovery will make the perception of the Justice Department potentially charging Trump over his handling of the documents more challenging. As a special counsel, Smith is handling that investigation, along with one into Trump’s efforts to overturn the 2020 election results and the Jan. 6 attack on Congress, under Garland’s supervision.
Moreover, the discovery will fuel the fires on Capitol Hill, where Republicans who have just taken the House majority were already planning multiple investigations of the Biden administration, including the decision to have the FBI search Mar-a-Lago.
Rep. James R. Comer, R-Ky., who is in line to become the chair of the House Oversight Committee, said Monday that he would investigate the discovery of the classified documents in Biden’s office, vowing to send letters demanding information within 48 hours.
“How ironic,” Comer said in an interview. “Now, we learn that Joe Biden had documents that are considered classified. I wonder, is the National Archives going to trigger a raid of the White House tonight? Or of the Biden Center?” He added, “So now we’re going to take that information that we requested on the Mar-a-Lago raid and we’re going to expand it to include the documents that Joe Biden has.”
The top Democrat on the committee, Rep. Jamie Raskin of Maryland, downplayed the matter, saying that he had confidence that Garland had taken appropriate steps to review the circumstances and that Biden’s lawyers “appear to have taken immediate and proper action” to notify the archives of the documents.
The department’s leadership decided to make the unusual choice of assigning the case outside the jurisdictions involved because Lausch was a Republican appointee and his work would likelier be seen as impartial, according to a person familiar with the situation.
With Lausch investigating the handling of classified information in Biden’s office, and David Weiss, the U.S. attorney in Delaware, investigating the president’s son, Hunter Biden, both Trump-appointed U.S. attorneys who have remained at the department are now scrutinizing the Biden family.