Biden’s classified documents, explained: What to know about the investigation

Attorney General Merrick Garland has appointed Robert K. Hur as special counsel to investigate the handling of classified documents found at a former office and the Delaware home of President Biden, an extraordinary development that comes two months after Garland named a different special counsel to oversee the criminal probe of former president Donald Trump’s handling of classified information.

Biden’s lawyers have said they quickly turned all the classified documents over to authorities and have cooperated fully with the appropriate government agencies. Trump, in contrast, resisted government entreaties to hand over official documents for months, including after a grand jury subpoena demanded the return of any material marked classified.

Elected officials’ handling of sensitive government material has been the subject of fierce political debates since at least 2016, when Trump made a Justice Department investigation of the use of a private email server by his Democratic rival, Hillary Clinton, central to his presidential campaign.

Here are the basics of what’s going on with Biden:

Where were the first and second batches of Biden’s classified documents found?

The first batch of classified documents was found on Nov. 2 but did not come to light publicly until this week after the discovery was reported by CBS News. Biden’s legal team said a small number of classified documents were discovered when an attorney opened a locked closet to pack up the contents of an office at the Penn Biden Center for Diplomacy and Global Engagement in Washington that Biden used after he served as vice president in the Obama administration. People familiar with the matter, who like others spoke on the condition of anonymity because of the ongoing investigation, told The Washington Post that the discovery involved about 10 classified documents.

The White House counsel’s office notified the agency tasked with handling federal government records, the National Archives and Records Administration (NARA), which took possession of the documents the following day, a Biden lawyer said.

A small number of additional classified documents were recovered from the garage and an adjacent room of Biden’s Wilmington, Del., residence, Biden’s lawyer said in a statement Thursday. The statement said that Biden’s vacation home in Rehoboth Beach, Del., was also searched and that no documents were found there.

The first set of papers may have been transferred at a time when Biden was transitioning out of political life and establishing new personal offices. Biden opened the Penn Biden Center in 2018 as a think tank for the University of Pennsylvania, attracting some of the country’s top foreign policy experts and former lawmakers, and he used it until he launched his 2020 presidential bid, the White House has said.

Do we know what Biden’s classified documents contain?

We do not, although it is safe to say that most classified documents deal in some way with material related to foreign countries.

At a news conference in Mexico City on Tuesday, Biden provided a few details on how the documents were found, saying that his lawyers were clearing out his office at the Penn Biden Center and discovered the documents in a box and in what he called “a locked cabinet, or at least a closet.”

“And as soon as they did, they realized there were several classified documents in that box,” he added, without disclosing the content.

Biden’s files at the Penn Biden Center were apparently mixed in with other personal documents, according to a person familiar with the inquiry, including some related to the planning of the funeral of Beau Biden, his son who died in 2015.

How did Garland decide on a special counsel?

The attorney general tapped the U.S. attorney for the Northern District of Illinois, John R. Lausch Jr., a Trump appointee, to complete the initial review of Biden’s handling of the classified documents — another apparent effort to ensure the work was done impartially.

When speaking to reporters Thursday, Garland said Lausch briefed him last week on his findings and told him a special-counsel appointment was warranted.

“This is a textbook case of what is required under the regulations,” a senior Justice Department official said before Garland’s announcement. The official was not authorized to discuss the matter publicly and spoke on the condition of anonymity.

[Who is Robert Hur, special counsel for Biden classified documents probe?]

Hur is a veteran attorney who began his legal career as a Supreme Court clerk, worked as a federal prosecutor, led a U.S. attorney’s office, served as a top Justice Department official and spent time working for some of the most prominent law firms in Washington.

He was a longtime federal prosecutor at the U.S. attorney’s office in Maryland, working as an assistant U.S. attorney there and then, for nearly three years, leading that office. A graduate of Harvard and Stanford, Hur also worked as a law clerk for then-Chief Justice William H. Rehnquist.

What has Biden said about the classified documents?

The president has expressed “surprise” at the discovery of the documents at the Penn Biden Center, and he pledged to cooperate with any investigations.

“I was briefed about this discovery and surprised to learn that there are any government records that were taken there to that office,” Biden said at a news conference in Mexico City on Tuesday.

“But I don’t know what’s in the documents,” he said. “My lawyers have not suggested I ask what documents they were. I’ve turned over the boxes — they’ve turned over the boxes to the Archives. And we’re cooperating fully — cooperating fully with the review, which I hope will be finished soon, and there will be more detail at that time.”

Biden called Trump’s handling of classified documents “totally irresponsible” in a September television interview, asking, “How that could possibly happen?”

On Thursday, before Garland’s announcement of the special counsel, Biden responded to questions from reporters after giving remarks related to the economy. He was pressed on why classified documents were found at his home garage.

“By the way, my Corvette’s in a locked garage, so it’s not like it’s sitting out in the street,” he said. “As I said earlier this week, people know I take classified material seriously. I also said we’re cooperating fully with the Justice Department’s review.”

He said that the documents were discovered in “storage areas and file cabinets in my home and my personal library.”

The president also suggested he will say more in the near future. “I’m going to get the chance to speak on all of this, God willing, soon,” he said.

How does this compare with Trump’s classified documents at Mar-a-Lago?

There are key distinctions between the Justice Department’s review of the Biden documents and the agency’s ongoing criminal investigation of Trump’s possible mishandling of classified documents.

Volume is one key difference. The FBI eventually recovered more than 300 classified documents from Trump’s private club and residence, Mar-a-Lago, last year, according to government court filings.

Another contrast is that the classified materials found at Biden’s home and former office were quickly and voluntarily returned to government custody, his lawyers have said. By contrast, prosecutors have said they are investigating whether Trump or others obstructed government efforts to recover the secret papers. In addition, Trump representatives claimed in mid-2022 that they had conducted a diligent search for classified documents and returned everything they could find. Weeks later, FBI agents conducting a court-authorized search of Mar-a-Lago found more than 100 additional classified documents.

In Trump’s case, investigators are looking at possible charges of obstruction of justice or destruction of records as well as the possible mishandling of government secrets. No such allegation has been leveled in the Biden matter, although the investigation is at an earlier stage.

“When is the FBI going to raid the many houses of Joe Biden, perhaps even the White House?” Trump wrote Monday on Truth Social, the social media platform he started. “These documents were definitely not declassified.”

The Biden documents were found at the Penn Biden Center a little over two weeks before Garland appointed a special counsel, Jack Smith, on Nov. 18 to lead the agency’s Mar-a-Lago probe.

What have Republicans said about Biden’s classified documents?

Republican leaders on Capitol Hill and elsewhere have called for more information about the Biden discovery and alleged a double standard in the way the government and news organizations have dealt with the Trump and Biden situations.

Republicans have made the Mar-a-Lago search central to their calls for investigating or overhauling the Justice Department and pointed to the Biden documents as further evidence of alleged political bias in its processes.

Rep. James Comer (R-Ky.), chairman of the House Oversight Committee, asked the White House and the National Archives on Tuesday to produce by Jan. 24 all documents and communications by NARA, the White House, the Justice Department and Biden’s attorneys related to the classified documents.

“NARA’s inconsistent treatment of recovering classified records held by former President Trump and President Biden raises questions about political bias at the agency,” Comer wrote in a letter to Debra Steidel Wall, the acting U.S. archivist.

In addition, Sen. Mark R. Warner (D-Va.), chairman of the Senate Intelligence Committee, asked for a briefing on the Biden documents while renewing a request for one on the classified documents found at Mar-a-Lago.

Matt Viser, Tyler Pager, Jacqueline Alemany, Glenn Kessler and Perry Stein contributed to this report.