Special counsel appointment complicates House GOP’s Biden document investigations
Sarah Westwood
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House Republicans are practically salivating at the chance to dig into President Joe Biden’s handling of classified documents with their newly established oversight authority.
But their calls for the Justice Department to appoint a special counsel for the case, which Attorney General Merrick Garland did on Thursday, could result in less cooperation from government investigators.
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That prospect has so far not slowed down GOP lawmakers, who are probing the discovery of sensitive documents at Biden’s private office in Washington, D.C., and home in Wilmington, Delaware. The revelations drew immediate comparisons to former President Donald Trump’s own handling of records, which led the FBI to raid his Mar-a-Lago residence last year.
At least two GOP-led House committees are expected to investigate various aspects of the Biden documents case, which has become a top priority for Republicans even after they spent months carefully choreographing the rollout of an investigative agenda that did not account for the new revelations.
House Oversight Committee Chairman James Comer (R-KY) initiated an investigation this week into the substance of the case: who searched for Biden’s classified documents, where they looked, and what kind of information the material contained.
House Judiciary Committee Chairman Jim Jordan (R-OH) launched a separate investigation on Friday into a potentially more explosive angle of the case: how the Justice Department approached the case, why it appeared to differ from the handling of the Trump case, and whether Justice Department officials intentionally concealed information.
But the appointment of Robert Hur to lead the special counsel investigation in Biden’s case could stymie some of the Republicans’ efforts to get answers.
Sens. Mark Warner (D-VA) and Marco Rubio (R-FL), the top two members of the Senate Intelligence Committee, complained in December that the special counsel leading the Trump documents case had refused to answer their panel’s questions about the classified material FBI agents recovered from Trump’s Mar-a-Lago home.
House Republicans could face the same wall of silence from Hur as he conducts the highly sensitive criminal investigation into Biden.
The investigations come as House Republicans ramp up their war with the Department of Justice over a broader set of grievances that stretch back years.
For many GOP critics, the agency’s handling of the Biden document case is just the latest data point to support their argument that the Justice Department operates with a bias against conservatives.
“We’ve watched them get out of control with no check and balance,” House Speaker Kevin McCarthy (R-CA) told Fox News of the Justice Department and the FBI this week.
McCarthy also decried the “hypocrisy” of Biden criticizing Trump for mishandling classified documents while classified records sat in his own private quarters.
“They’ve gotten away with so much for so long,” McCarthy said. “They think they’re above the law.”
Some experts have noted key differences between the Trump and Biden cases.
The volume of documents discovered in Trump’s Mar-a-Lago home appears at this stage larger than the several batches of documents recovered from Biden’s home and office, for example.
And Trump’s legal team faces allegations of obstructing investigators, while Biden’s legal team has maintained that it has cooperated with the Justice Department at every step.
“There are obviously differences in the cases, including allegations of false statements and obstruction at Mar-a-Lago. However, the underlying offense remains the same,” Jonathan Turley, legal analyst and professor at the George Washington University Law School, told the Washington Examiner.
Now, Turley said, Garland will likely need to weigh the handling of the Trump and Biden cases together to ensure consistency.
“In any final charging decision, the special counsel and the attorney general will confer on whether an indictment is consistent with department policies and practices, including the handling of similar cases,” he said. “That does not mean that this effectively negates or bars any possible charges at Mar-a-Lago.”
Biden found himself at the center of a brewing controversy this week when news reports revealed his White House counsel had alerted the National Archives in early November about the discovery of classified documents in Biden’s private office in Washington, D.C., where he spent time before becoming president.
Garland said Friday that an official at the National Archives’s Office of Inspector General, its watchdog arm, alerted the Justice Department to the situation at that time.
Garland said the FBI began an investigation five days later.
More than a month afterward, Garland said, Biden’s personal lawyer, not the White House counsel this time, told the Justice Department that his team had found additional documents in the garage at Biden’s Delaware home. The FBI was then dispatched to the home to retrieve the second batch of documents.
Garland said he made the decision to appoint a special counsel to oversee the matter one week before his announcement of the matter on Jan. 5. In the interim days, he noted, the Justice Department looked for a candidate for the job.
Then, just hours before he announced the special counsel, Garland said the Justice Department received a call from Biden’s personal lawyer informing the department of the discovery of another document bearing classified markings — the third such discovery since November. The document was, again, found at Biden’s Wilmington house.
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One of the most pressing questions surrounding the Biden and Trump cases is why, for the former president, FBI agents raided the residence where they suspected Trump had classified documents but, in the case of the current president, relied on the word of Biden’s team about whether all the classified material had been identified.
That meant for more than two months after the Justice Department learned about the first batch of classified papers, other classified records sat unsecured in a Delaware garage that the FBI declined to search.