Special Counsel to Investigate Biden Over Classified Documents. What We Know So Far

The Justice Department is reviewing the discovery of classified documents held by Joe Biden since the end of his vice presidency in 2017 in at least two locations, Attorney General Merrick Garland confirmed Thursday. The first set of documents were found in November in a private office at the Penn Biden Center in Washington, D.C. The second set was found more recently at Biden’s home in Wilmington, Delaware.

Garland said he has appointed former U.S. attorney Robert Hur as special counsel to review the storage of the documents. Following his appointment, Hur said in a statement, “I will conduct the assigned investigation with fair, impartial, and dispassionate judgment.”

When asked about that first set of materials during his recent trip to Mexico on Tuesday, Jan. 10, Biden said he didn’t know what was in the documents and that he was “surprised to learn there were any government records that were taken there to that office.” He emphasized that his team was “cooperating fully” and “immediately” turned the material over to the National Archives and Records Administration.

“I take classified documents, classified information, seriously,” Biden said.

On Thursday, Biden told reporters that most of the materials in the second set that was found were kept in a locked storage space where his sports car was also held. “My Corvette’s in a locked garage, okay?” Biden stressed. “So it’s not like they’re sitting out on the street.”

When, where, and how were the classified documents found?

Richard Sauber, special counsel to the President, said in a statement on Monday that the initial documents were discovered on Nov. 2, 2022, “when the President’s personal attorneys were packing files housed in a locked closet to prepare to vacate office space at the Penn Biden Center in Washington, D.C.”

The Penn Biden Center for Diplomacy and Global Engagement is an independent research institution in Washington D.C. located about a mile from the White House. Biden used the space “periodically” before his 2020 presidential campaign, according to Sauber’s statement.

The discovery took place less than a week before Election Day for the U.S. midterms and just about two weeks before the Justice Department appointed a special counsel to investigate former President Donald Trump’s handling of classified documents.

Sauber added that the White House Counsel’s office immediately notified the National Archives of the discovery, and the agency took the documents under custody the next day. Garland said the National Archives contacted the Justice Department about the matter on Nov. 4.

On Dec. 20, according to Garland, Biden’s lawyer informed U.S. Attorney John Lausch Jr., who was tasked with conducting the initial investigation into the matter, that additional documents with classification markings had been found in the garage of Biden’s personal residence in Wilmington. Biden’s lawyer alerted the Justice Department to the existence of an additional document in Wilmington on Jan. 12.

In another statement on Thursday, Jan. 12, Sauber said Biden’s lawyers had “discovered among personal and political papers a small number of additional Obama-Biden Administration records with classified markings” in the Wilmington residence.

“All but one of these documents were found in storage space in the President’s Wilmington residence garage,” Sauber continued. “One document consisting of one page was discovered among stored materials in an adjacent room.”

The discovery of the initial set of classified documents at the Penn Biden Center was first reported by CBS News on Monday, while NBC News first reported on the discovery of additional classified materials in Delaware on Wednesday.

Is an investigation underway?

On Jan. 12, Garland said he appointed Hur as special counsel to investigate the handling of the documents, believing after a preliminary investigation that it was “in the public interest” to appoint a special counsel.

Hur has been authorized “to investigate whether any person or entity violated the law in connection with this matter,” Garland said. “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.”

Under the Presidential Records Act, official documents of the President and his staff—including the Vice President—must be turned over to the National Archives at the end of their term. More broadly, unauthorized removal and retention of classified material is illegal. However, over the years, commentators have decried the problem of “overclassification.”

Who is Robert Hur?

Born in New York in 1973, Hur is a Korean-American lawyer who served as U.S. Attorney for the District of Maryland between 2018 and 2021—having been nominated by then-President Trump and confirmed by a unanimous voice vote in the Senate. Since leaving government, Hur has worked in private practice in Washington, D.C.

Hur has extensive experience with sensitive investigations. He worked as a federal prosecutor in Maryland from 2007 to 2014, and in 2017 he became a top aide to Deputy Attorney General Rod Rosenstein. In that position, he was a key figure in managing the Robert Mueller-led special counsel probe into Russian interference in the 2016 election.

Educated at Harvard College and Stanford Law School, Hur began his legal career with clerkships for Supreme Court Chief Justice William H. Rehnquist and for Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals.

“Rob has been around long enough—he knows what he is getting into,” Rosenstein told CNN Thursday. “He’s highly intelligent, ethical and unwavering in his pursuit of justice,” a former colleague told the Washington Post in 2017.

What do we know about the documents?

The initial statement from the President’s attorney described the first batch of records as “a small number of documents with classified markings.”

Sources told CBS that “roughly 10” classified materials were found in a box with other unclassified materials. According to CNN, “fewer than a dozen” classified documents were found, including “some top-secret files with the ‘sensitive compartmented information’ designation, also known as SCI, which is used for highly sensitive information obtained from intelligence sources.”

A source told CBS that none of the documents in the first set contained nuclear secrets.

Sauber described the second batch of documents found at Biden’s home as “a small number of additional Obama-Biden Administration records with classified markings.” It remains unclear how many additional documents were found at the second location or what levels of classification those may have had.

Has this kind of thing happened before?

The Justice Department is currently investigating the fact that more than 300 classified documents were in Trump’s possession after his presidency.

Jack Smith—a former prosecutor for the Justice Department as well as for The Hague who is also overseeing the criminal investigation into whether there was unlawful interference in the Jan. 6, 2021, transfer of power—was appointed special counsel to lead the probe into Trump’s handling of those classified documents as well as any potential related obstruction of justice.

Several years ago, former Secretary of State Hillary Clinton also drew controversy for using a private email server instead of official State Department accounts during her tenure. The Justice Department ultimately did not prosecute Clinton; an investigation later found no evidence that she deliberately mishandled classified documents.

How is the Biden case different from the Trump case?

The two recent cases differ in a number of ways, including in what we know so far about the quantity and content of the classified materials—though that is limited. The main difference, however, lies in how the sensitive documents were surrendered by the respective participants following their discovery.

Sauber’s statement on Monday noted that the classified documents found in the former Vice President’s office “were not the subject of any previous request or inquiry by the Archives.” Biden’s legal team has said regarding both batches that it promptly surrendered all documents in question to the proper authorities and has been cooperating with inquiries into the matter.

In Trump’s case, the FBI had to obtain a search warrant to retrieve a cache of classified documents from the former President’s Mar-a-Lago estate after the National Archives engaged with Trump for months after he left office over the handling of presidential records. The Washington Post reported that the agency emailed Trump’s lawyers in May 2021, notifying that some two dozen boxes of original presidential records had not been turned over per protocol.

In January 2022, Trump’s representatives supplied the National Archives with 15 boxes of documents and added they were looking for additional records. The Justice Department then issued a subpoena for Trump to turn over any other classified materials in June. Upon suspicion that Trump failed to comply with the subpoena, federal investigators searched the resort in August, where they found 11 additional sets of classified documents, reportedly including information on a foreign nation’s nuclear capabilities.

Since the seizure of documents from his Mar-a-Lago home, Trump and his allies have argued that the investigation into him is politically motivated.

In an interview with 60 Minutes on CBS in September, Biden was asked to react to a photograph showing documents the FBI retrieved from Mar-a-Lago. The President questioned “how that could possibly happen, how anyone could be that irresponsible.”

What are Republicans and Democrats saying?

Following the first reports of the discovery of classified documents at the Penn Biden Center earlier this week, Trump took to his social media platform, Truth Social, and wrote: “When is the FBI going to raid the many homes of Joe Biden, perhaps even the White House? These documents were definitely not declassified.”

Speaker of the House Kevin McCarthy, told reporters on Monday that the news about classified documents at the Penn Biden Center proved the investigation into Trump was politically motivated. “I just think it goes to prove what they tried to do to President Trump,” he said, according to CNN, “[they] overplayed their hand on that.” On Thursday, in light of the discovery of a second batch of documents in Biden’s home, McCarthy said Congress should investigate the situation.

Other top House Republicans have also connected Biden’s situation with Trump’s handling of classified documents. “President Biden has been very critical of President Trump mistakenly taking classified documents to the residence or wherever and now it seems he may have done the same,” said Kentucky Rep. James Comer, the new chair of the House Oversight Committee, according to CNN. “How ironic.”

“This is further concern that there’s a two-tier justice system within the DOJ with how they treat Republicans versus Democrats, certainly how they treat the former President versus the current President,” Comer added, the AP reported.

Rep. Jim Jordan of Ohio said the American public should have known about this earlier. It is unclear why the White House did not reveal the documents’ discovery sooner.

“They certainly knew about the raid on Mar-a-Lago 91 days before this election, but [it would have been] nice if on November 2, the country would have known that there were classified documents at the Biden Center,” Jordan said, according to the AP.

A statement from the House Oversight Committee’s ranking member, Democratic Rep. Jamie Raskin of Maryland, said: “Attorneys for President Biden appear to have taken immediate and proper action to notify the National Archives about their discovery of a small handful of classified documents found in a locked cabinet at the Penn Biden Center so they could be returned to federal government custody. I have confidence that the Attorney General took the appropriate steps to ensure the careful review of the circumstances surrounding the possession and discovery of these documents and make an impartial decision about any further action that may be needed.”

McCarthy seemed to cast doubt on the reported timeline. When CBS asked the new Speaker if there were material differences between the Trump and Biden cases because Biden’s attorneys “immediately” handed over the classified material, he reportedly responded, “Oh, really? They just now found them after all those years.”

“Impeach Biden, that’s what we need to do,” Rep. Marjorie Taylor Greene of Georgia told C-SPAN on Wednesday.

“There’s going to be nuances,” former Republican Rep. Adam Kinzinger, who spoke out against Trump and served on the House select committee investigating Jan. 6, told CNN on Monday, but he emphasized that Trump will use the latest revelation to deflect from any of his own potential wrongdoing. “So from a political perspective, this is actually probably pretty bad. Not just for [Biden], but really for the idea of getting justice through the political system.”

—With reporting by Brian Bennett/Mexico City, Mexico.