President Joe Biden, left, and former President Donald Trump, right, in a composite image.
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The DOJ is investigating Biden’s handling of classified docs after aides discovered government records in at least two locations since November.
The discoveries raise serious questions about the counterintelligence risks, but ex-prosecutors warn against conflating the Trump and Biden cases.
Trump’s former White House lawyer told Insider that AG Garland should appoint a special counsel to investigate Biden.
President Joe Biden’s aides have discovered classified records improperly stored in at least two locations since November, according to the White House and media outlets. The Justice Department is reviewing the matter, and former President Donald Trump and his Republican allies have pounced on the revelations, accusing Biden of having committed a “crime” and calling for him to be prosecuted.
DOJ veterans say that while the timing of the White House’s disclosure raises serious questions — it came more than two months after the first batch of documents was discovered and turned over — it’s unlikely that Biden is facing criminal liability, based on emerging accounts of the investigation. That said, some legal experts say it’s time for Attorney General Merrick Garland to appoint a special counsel to look into the Biden case.
First, an important caveat: most of what we know about the Biden case is based on the very little information the White House has released to the public. The president’s team said on Monday that a “small” batch of documents was found in November in a “locked closet” at Biden’s old office at the Penn Biden Center for Diplomacy and Global Engagement in Washington, DC.
CNN reported that Biden wasn’t aware the documents were there, and didn’t become aware of that fact until his personal attorneys notified the White House counsel’s office. The report also said Biden and the White House’s legal team don’t know what’s in the documents.
On Wednesday, NBC News reported that Biden’s aides discovered a second batch of classified material at another location as part of an exhaustive search that’s been underway since the first cache was found in November.
Garland tapped John Lausch, the Trump-appointed US attorney in Chicago, to look into the matter, according to CBS News, and Lausch been investigating it since November. A source familiar with the matter told CNN that Lausch has finished the initial part of his investigation and presented his preliminary findings to Garland.
Asked about the timing of the White House’s disclosure, a spokesperson for the White House counsel’s office said that “this is an ongoing process under review by DOJ, so we are going to be limited in what we can say at this time. But we are committed to doing this the right way, and we will provide further details when and as appropriate.”
Matt Miller, a former Justice Department spokesperson under Barack Obama, told Insider the Biden White House was under no obligation to publicize the matter.
“This kind of inadvertent spillage of classified information happens fairly frequently, and it is typically handled administratively — the individual self-reports, the relevant agency conducts a damage assessment, and the employee responsible might get some sort of reprimand or flag for their clearance,” Miller said.
“This kind of thing unfortunately happens a lot, and I’m struggling to think of previous examples where the government agency informed the public, absent some sort of egregious spill, major disciplinary action, etc.,” he added.
Ty Cobb, who served as White House special counsel under former President Donald Trump, echoed that view.
“You could go into any presidency, years after their service, and probably in every presidential library there’s a handful of things that were classified at the time that they were taken,” Cobb told Insider.
Still, he criticized the White House for waiting more than two months to disclose the existence of the inquiry.
“If Trump had done the same thing, people would have been going crazy,” Cobb said.
“The question that’s really front and center for the AG right now is the appointment of a special counsel, which frankly is required under the statute,” he added.
‘The aggravating factors’
Attorney General Merrick Garland speaks to reporters on August 11.
Susan Walsh/AP
Trump — who is himself facing a criminal investigation led by special counsel Jack Smith related to his hoarding of classified materials — seized on the first Biden revelation, writing on Truth Social, “When is the FBI going to raid the many homes of Joe Biden, perhaps even the White House? These documents were definitely not declassified.”
But legal scholars cautioned against conflating the two inquiries based on what’s currently known, saying that while the Biden matter should be scrutinized through a criminal and counterintelligence lens, there are key differences between that and the Mar-a-Lago documents case in terms of both scale and scope.
“This only seems like a big deal because of the Trump issue, when in fact it shares characteristics not with Trump’s fact set, but with all the other incidents the public never hears about,” Miller said.
In Trump’s case, US officials tried for 18 months to recover hundreds of pages of sensitive documents stored at his Mar-a-Lago residence, and the former president repeatedly resisted turning them over. Trump and his lawyers ignored a grand jury subpoena when they turned over some, but not all, of the classified records at Mar-a-Lago. US officials finally recovered all the documents after executing a search warrant at Mar-a-Lago in August. Garland confirmed the search after Trump announced it to the public.
In Biden’s case, his lawyers uncovered about ten documents bearing classification markings at his old office on November 2 and notified NARA as soon as they discovered the materials. NARA collected the records the next day. CNN reported that among them were US intelligence memos and briefing materials related to Ukraine, Iran, and the UK.
Barbara McQuade, the former US attorney for the Eastern District of Michigan, told Insider that it’s important for the Justice Department to investigate the Biden case.
A counterintelligence probe would help determine whether any sensitive information was disclosed to US adversaries, and if any sources or methods were compromised. And a criminal investigation would determine if anyone broke the law.
For the latter, prosecutors would need to establish a chain of custody to determine who stored the documents, and whether it was Biden himself who retained them, McQuade said. She added that the Justice Department typically doesn’t prosecute cases involving mishandling of classified documents in the absence of aggravating factors such as a willful violation, storage in a manner that exposes secrets to the public, obstruction of justice, or disloyalty to the United States.
Biden’s case “seems to be different from the case involving Donald Trump and the documents found at Mar-a-Lago because of those aggravating factors,” McQuade told Insider. “It appears that at least two of the aggravating factors, obstruction and willfulness, are present in the Trump case, but absent in the Biden case.”
Andrew Weissmann, the FBI’s former general counsel, echoed that view, writing on Twitter that “it’s not a crime to accidentally take and retain govt docs. If upon learning that you have docs, you return them, there is no crime. That is not what Trump did. If he had simply returned everything this [would] have been a nonstory.”
But Randall Eliason, a law professor at George Washington University and former federal prosecutor in Washington, DC, said that while the Trump and Biden cases are “nowhere near equivalent,” it’s “still a serious matter to have Top Secret documents in your personal desk.”
Cobb, Trump’s former White House counsel, went further, saying that drawing a distinction between the two cases is akin to “putting lipstick on a pig.”
“As a matter of law, they’re in the same situation,” he told Insider.
That said, Cobb added that he believes the Justice Department is more likely to take legal action against the former president than against Biden — just not for the classified documents case.
“Trump faces more liability in connection to the January 6 investigation,” he said. “A lot of those things are unprecedented in American history. There is no whataboutism that haunts that case, because no one else has done anything as egregious or unconstitutional as that.”
Correspondent Nicole Gaudiano contributed reporting.