Attorney General Merrick Garland announces special counsel to oversee Biden documents probe

Washington — Attorney General Merrick Garland has appointed the former U.S. attorney from Maryland as special counsel to oversee the investigation of documents with classified markings found at President Biden's former office at a Washington think tank and in the garage at his Wilmington, Delaware, home, Garland announced Thursday.

Robert Hur, the former top federal prosecutor in Maryland, will serve as the special counsel overseeing the review of the documents, which date back to Mr. Biden's time as vice president in the Obama administration. Hur served as U.S. attorney during the Trump administration and is the second special counsel appointed to oversee an investigation into sensitive documents found after the end of a presidential administration. 

Garland appointed Jack Smith in November to take over the probe into former President Donald Trump's handling of sensitive government documents.

Their appointments thrust the Justice Department into familiar, yet uncharted waters, with two independent probes into the likely presidential frontrunners being carried out just as the next election cycle is set to commence. 

"I strongly believe that the normal processes of this department can handle all investigations with integrity, but under the regulations, the extraordinary circumstances here require the appointment of a special counsel for this matter," Garland said during brief remarks announcing Hur's appointment. "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 said that during Hur's tenure as the U.S. attorney in Maryland, he supervised some of the Justice Department's "more important" national security, public corruption and other high-profile matters. 

In a separate statement, Hur pledged to conduct the investigation with "fair, impartial, and dispassionate judgment."

"I intend to follow the facts swiftly and thoroughly, without fear or favor, and will honor the trust placed in me to perform this service," he said.

Richard Sauber, a White House lawyer who serves as Mr. Biden's special counsel, said in a statement that the White House will fully cooperate with the probe.

"As the president said, he takes classified information and materials seriously, and as we have said, we have cooperated from the moment we informed the Archives that a small number of documents were found, and we will continue to cooperate," he said. 

Sauber said the White House is "confident that a thorough review will show that these documents were inadvertently misplaced, and the president and his lawyers acted promptly upon discovery of this mistake."

CBS News reported Monday that roughly 10 documents marked classified were discovered by Mr. Biden's personal lawyers at his vice-presidential office at the Penn Biden Center for Diplomacy and Global Engagement on Nov. 2, days before the midterm elections, and turned over to the National Archives and Records Administration.

The Archives notified the Justice Department on Nov. 4, Garland said during his remarks, and on Nov. 9, the FBI commenced an assessment to understand whether classified information had been mishandled in violation of federal law.

Several days later, on Nov. 14, the attorney general assigned the U.S. attorney in Chicago, John Lausch, to review the documents and examine how they ended up at the think tank. Lausch was appointed to the post by Trump but is leaving the Justice Department for the private sector in early 2023.

Sauber confirmed Thursday that Mr. Biden's attorneys found a second "small number" of documents from the Obama administration in a garage in his Wilmington home, and another single document was discovered in an adjacent room. No documents were found in Mr. Biden's Rehoboth Beach home.

Garland revealed Thursday that Mr. Biden's personal counsel informed Lausch on Dec. 20 of the materials discovered in the garage in Wilmington, which were among other records from Mr. Biden's tenure as vice president. The FBI then went and secured the documents, according to the attorney general.

Lausch learned Thursday morning of the single document bearing classification markings that was found at Mr. Biden's Wilmington home.

The Justice Department was "immediately notified" of the documents, and the White House is "fully cooperating with the National Archives and the Department of Justice  in a process to ensure that any Obama-Biden Administration records are appropriately in possession of the Archives," Sauber said.

Garland's decision to appoint a special counsel in Mr. Biden's case comes just months after he appointed another prosecutor, Smith, as special counsel to investigate Trump's handling of sensitive government records found at his South Florida residence from the White House after his presidency.

In addition to the documents case involving Trump, Smith is overseeing the investigation into efforts to overturn the results of the 2020 presidential election. He was tapped to take over the probes after Trump announced he would be running for president a third time.

While there are parallels between the investigations into Mr. Biden and Trump, the scope and scale are markedly different.  

In the case involving the former president, efforts by the Archives to retrieve materials taken by Trump to Mar-a-Lago 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, and 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.

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. 

Retaining classified information after leaving government service does not necessarily result in criminal charges. The FBI determined that former Secretary of State Hillary Clinton had classified material on a private email server for several years after she left the State Department in 2013 and concluded that sloppiness, not ill intent, was to blame.