Attorney General Merrick Garland announced on Thursday that he was appointing a special counsel, former U.S. attorney Robert Hur, to review the storage of sensitive documents discovered in spaces used by President Joe Biden during the years preceding his return to the White House.
“The extraordinary circumstances here require the appointment of a special counsel for this matter,” Garland said during a news conference at the Justice Department. “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’s decision underscores the gravity of the discoveries, which included one set of documents found at an office space Biden used and another set found in the garage of his home in Wilmington, Del. The Justice Department had already appointed special counsel Jack Smith to look into former President Donald Trump’s handling and storage of classified material at his Mar-a-Lago home in Florida, as well as other matters.
Biden officials have not characterized the content of the records they found or the quantity, other than describing it as a “small number.” They have pledged to cooperate with authorities on the matter.
White House lawyers initially found sensitive documents at the Penn Biden Center in Washington — where Biden kept a personal office — on Nov. 2, a day before the midterm elections, and notified the Justice Department. On Dec. 20, Biden’s team notified the department of a second batch of documents in Biden’s Wilmington garage. On Thursday, they informed the department of another document found in Biden’s house. Garland was briefed on the investigation on Jan. 5.
Garland had initially referred the matter of Biden’s classified documents to John Lausch, a Chicago-based U.S. attorney appointed by Trump. Garland’s decision to place the probe under supervision of a special counsel ratchets up the legal stakes for Biden, who has stressed that he takes the matter seriously while saying he was surprised to learn about the existence of the documents.
“U.S. Attorney Lausch and his team of prosecutors and agents have conducted this initial investigation with professionalism and speed. I am grateful to them,” Garland said, announcing that Lausch plans to leave the federal government later this year for a private-sector job.
Hur is leaving his role as a partner at the Gibson Dunn law firm to take on the special counsel assignment.
A graduate of Stanford Law School, Hur later served as a law clerk to Chief Justice William Rehnquist. Hur went on to spend about seven years as a line federal prosecutor in Maryland. After a brief stint in private practice, Hur returned to the Justice Department in 2017 to serve as the top adviser to Deputy Attorney General Rod Rosenstein.
In that capacity, Hur conducted a briefing for reporters at the Trump White House on efforts by the Justice Department and other federal agencies to crack down on violent gangs such as MS-13.
Trump later tapped Hur to take the U.S. attorney position that Rosenstein vacated, serving as the top federal prosecutor in Maryland. That office takes on a disproportionate share of cases involving classified information, in part because of its proximity to NSA headquarters. It’s also the office the White House turned to investigate White House leaks during the Obama administration.
Garland noted that Biden had hired a personal attorney to handle the documents matter, but it wasn’t immediately clear who was representing him in that capacity.
Under a longstanding Justice Department legal opinion, a sitting president cannot be charged with a federal crime. That appears to preclude any criminal charges for Biden, at least as long as he remains in office, although it would not provide any protection to his aides or advisers if they engaged in criminal conduct.
However, the fast-moving developments related to the Biden documents come just as Trump — now a former president without any obvious immunity — is expected to face a potential charging decision for his own handling of classified documents.
Trump has claimed to have declassified all of the records in question before leaving office, but no evidence has emerged to support that contention, and his lawyers have refused to echo that claim in court. He has also insisted that the documents found in his Mar-a-Lago home were stored in a safe and secure manner.
Biden initially leaned on a similar line when asked about the presence of sensitive records in his Wilmington garage, next to his famous Corvette.
“By the way, my Corvette’s in a locked garage. OK. So it’s not like it’s sitting out in the street,” he said.
Still, there are significant differences in the timeline of the Trump-related documents and those found at Biden’s office and home. The National Archives discovered the presence of records with classified markings at Mar-a-Lago in January 2022, after a protracted effort to reclaim presidential records that Trump had warehoused at his estate since leaving office. Trump sent an initial batch of 15 boxes back to the archive that month.
After discovering the material marked classified, the Archives forwarded the matter to the Justice Department, which soon subpoenaed Trump’s presidential office for all other documents with classified markings. The department also subpoenaed security footage to review the handling of the documents, which were kept in a storage room and Trump’s personal office.
But Justice Department investigators said evidence they collected showed that even after the subpoena, Trump’s team had not turned over everything in their possession — even as the ex-president’s aides presented the department with a signed attestation that all subpoenaed documents had been turned over. The FBI discovered another trove of sensitive records after executing a search at Trump’s estate in August, including some that he kept in his personal office.
Biden’s team, by contrast, has repeatedly emphasized its proactive approach to the discovery of the records. In two statements, White House lawyer Richard Sauber said Biden’s own team discovered the documents, immediately alerted the Archives and the Justice Department and returned the records. Similarly, they conducted additional searches and have pledged to cooperate with department investigators.
Trump sued last year to demand the return of documents seized by the FBI, a battle that reached the Supreme Court, only to result in a sharp rejection of his effort to sideline the Justice Department investigation. Republicans and Democrats on Capitol Hill have demanded assessments of the potential damage to national security caused by the handling of the documents.