Biden docs revelation fuels Republicans as they flex new power

Washington — The revelation that a small number of documents marked classified were discovered in President Biden's former office at a think tank in Washington is fueling House Republicans' criticisms of the Justice Department and drawing promises of investigations into the matter by the new House majority.

CBS News reported Monday that Mr. Biden's personal lawyers found roughly 10 documents marked classified in his vice-presidential office at the Penn Biden Center for Diplomacy and Global Engagement in Washington. The documents, which date to when Mr. Biden was vice president, were found Nov. 2, days before the midterm elections, Richard Sauber, special counsel to the president, told CBS News. 

The White House counsel's office notified the National Archives and Records Administration of the discovery that day, and the agency retrieved the materials the following morning, Sauber said. Attorney General Merrick Garland assigned the U.S. attorney in Chicago, a holdover from the Trump administration, to review the documents and how the material ended up at the center.

News of the discovery prompted swift criticism from House Republicans, who recently retook the majority and are claiming the Justice Department treated Mr. Biden differently than former President Donald Trump, whose handling of sensitive government documents brought with him from the White House to his South Florida residence is under investigation by a special counsel appointed by Garland.

"The only person that has the constitutional ability to declassify any documents is the president of the United States, not the vice president," House Majority Leader Steve Scalise told reporters Tuesday. "If then-Vice President Biden took classified documents with him and held them for years and criticized former President Trump during that same time that he had those classified documents, and only after it was uncovered did he turn them back, I wonder why the press isn't asking the same questions of him."

Rep. James Comer, who is poised to lead the House Oversight Committee, said Republicans have "a lot of questions" for the Archives about the documents found at the think tank, including the types of records that were in Mr. Biden's possession.

"We're requesting information related to the raid of Mar-a-Lago," he said, referencing the Aug. 8 search conducted by the FBI at Trump's Florida residence. "Now we're expanding that to include what Joe Biden had."

Comer, of Kentucky, suggested that had CBS News not learned of the discovery, it may have never become public.

"President Biden said during the campaign that he would have the most transparent administration in America. Yet we find out this happened November the 2, days before the midterm elections and no one found out about it," he said.

Republican Rep. Marjorie Taylor Greene of Georgia told reporters there needs to be a "very serious investigation" and reiterated her call for Mr. Biden to be impeached.

"There's a true two-tier justice system, stemming from Merrick Garland, Department of Justice and the way that President Trump has been treated, who is allowed to classify and declassify documents — presidents can do that — versus the Democrats and Joe Biden and how he's being treated," she said.

Rep. Mike Turner, the incoming chair of the House Intelligence Committee, requested a damage assessment of the documents marked classified in a letter to Director of National Intelligence Avril Haines, as well as a classified briefing to the committee on the "conduct of the damage assessment."

"This discovery of classified information would put President Biden in potential violation of laws protecting national security, including the Espionage Act and Presidential Records Act," he wrote. "Those entrusted with access to classified information have a duty and an obligation to protect it. This issue demands a thorough review."

On the Senate side, a spokesperson for Florida GOP Sen. Marco Rubio, vice chair of the Senate Intelligence Committee, said he and Sen. Mark Warner, the panel's Democratic chair, sent a letter to the Director of National Intelligence requesting access to the documents, for a damage assessment, and a briefing on both the documents discovered in Mr. Biden's former office and at Trump's home.

"Our system of classification exists in order to protect our most important national security secrets, and we expect to be briefed on what happened both at Mar-a-Lago and at the Biden office as part of our constitutional oversight obligations," Warner said in a statement. "From what we know so far, the latter is about finding documents with markings, and turning them over, which is certainly different from a months-long effort to retain material actively being sought by the government. But again, that's why we need to be briefed."

The documents at issue were discovered when Mr. Biden's personal lawyers were packing files kept in a locked closet at the Penn Biden Center, Sauber said. The records were contained in a folder that was in a box with unclassified papers, sources with knowledge of the inquiry told CBS News. The information contained in the documents and their level of classification is unknown, though a source familiar with the matter told CBS News the documents did not contain nuclear secrets.

Sauber said in his statement that "the documents were not the subject of any previous request or inquiry by the Archives. 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 records are appropriately in the possession of the Archives."

Mr. Biden learned of the documents when his lawyer reported them to the White House Counsel's Office in November, though a source said he is unaware of their contents.

Republicans criticizing Mr. Biden and the Justice Department have been quick to claim different standards have been set for Mr. Biden and his predecessor, citing the FBI's execution of a court-approved search warrant at Mar-a-Lago.

During that search, the FBI retrieved 103 records, among which were "some indicating the highest levels of classification and extremely limited distribution," federal prosecutors said in court filings.

"It's always one set of rules for President Trump — they literally raided his home 91 days before the midterm election — and a different standard it seems with President Biden," GOP Rep. Jim Jordan, who is set to take over the House Judiciary Committee, said Monday.

While the matters involving Mr. Biden and Trump both involve documents marked classified recovered after they left office, there are significant differences in the two cases.

In the case involving the former president, efforts by the Archives to retrieve materials taken by Trump with him to Mar-a-Lago at the end of his presidency spanned more than a year. The agency received 15 boxes of presidential records from the South Florida resort in mid-January 2022, and later revealed some of the documents contained records marked classified. Archives officials, though, believed some records remained unaccounted for.

The Justice Department said 184 documents with classification markings were among the materials in the boxes retrieved by the Archives from Mar-a-Lago, some of which include the "highest levels of classification."

After repeated communications between top Archives officials and Trump's lawyers, the Justice Department eventually obtained a grand jury subpoena in May for "any and all" documents bearing classification markings in Trump's possession at Mar-a-Lago, and set a May 24 deadline for them to be turned over.

Trump's lawyers provided federal investigators a large envelope containing 38 documents with classification markings in response to the subpoena, and the custodian of records for Trump's post-presidential office attested that "any and all responsive documents" were provided.

But after uncovering "multiple sources of evidence" indicating sensitive documents remained at Mar-a-Lago, the FBI sought and received from a federal magistrate judge the search warrant for the property. The search was conducted Aug. 8.

Federal investigators recovered more than 300 documents marked classified in all from Mar-a-Lago, and Justice Department lawyers revealed in court filings in August that Trump is under investigation for potential violations of the Espionage Act, obstruction of justice and unlawful concealment or removal of government records. 

Garland appointed Jack Smith as special counsel in November to oversee the probe involving Trump's handling of government records and a second investigation involving efforts to overturn the results of the 2020 presidential election.