Biden classified documents: What we know about the special counsel probe

When President Biden was asked on “60 Minutes” last September about the classified documents found at former President Donald Trump's Mar-a-Lago residence, he expressed shock that “anyone could be that irresponsible.”

But just six weeks later, on Nov. 2, White House lawyers found 10 top-secret classified documents in a storage room at an office at the Penn Biden Center in Washington, D.C., which was used by Biden after he left government as vice president in the Obama administration. That discovery — which was only made public this week — was followed by the disclosure that even more classified material was found in Biden's garage and at his home in Delaware.

On Thursday, Attorney General Merrick Garland announced the appointment of a special counsel, Robert Hur, to oversee the Justice Department’s investigation into the discoveries. As Hur’s probe gets underway, here’s what we know — and don’t know — about the Biden investigation and what impact, if any, it could have on the separate probe being conducted by special counsel Jack Smith involving Trump.

What’s in the documents, and how did they get to Biden’s private office?

The initial statement released by White House counsel Richard Sauber said a “small number” of classified documents were found by White House lawyers last Nov. 2 in a locked closet at the Penn Biden Center for Diplomacy and Global Engagement, an office Biden used after ending his term as vice president.

Media reports have said these documents include top-secret classified briefings on Ukraine, Iran and the United Kingdom, and that the material was mixed in with Biden's personal papers, including some relating to the funeral for Biden’s son, Beau Biden.

There has been no description so far of the material found in Biden’s home in Delaware, nor has there been any explanation as to who removed the documents or how they ended up at the Biden office and home. But it will likely be of interest to investigators that, while Biden left office in January 2017, the Penn Biden Center didn’t open until February 2018. In a statement Thursday, Sauber said White House lawyers are “confident” that the investigation will find the documents were “inadvertently misplaced.”

Why did the White House take so long to disclose?

According to the timeline laid out by Garland on Thursday, after the documents were found at the Penn Biden Center and turned over to the National Archives on Nov. 2, a prosecutor at the Justice Department was alerted to the discovery two days later by the National Archives' inspector general, an indication that it was judged to be evidence of a potential crime.

On Dec. 20, Biden’s personal attorney informed the Justice Department about the additional material found in Biden’s garage. That means that while there have been constant headlines for the past two months about the legal battle over Trump’s removal of classified documents from the White House — and his failure to return them in response to a subpoena — the Biden White House didn’t reveal that it had its own legal troubles over classified documents until this week.

White House press secretary Karine Jean-Pierre told reporters Thursday that the White House had stayed silent about the matter because the lawyers looking for additional classified documents didn’t complete their search until Thursday.

Why the need for a special counsel now?

On Nov. 14, Garland asked the U.S. attorney in Chicago, John Lausch, to conduct an initial review of the Biden documents to determine if a special counsel was needed. On Jan. 5, Lausch briefed Garland on his findings and recommended the naming of a special counsel. Mary McCord, the former acting chief of the Justice Department’s national security division, said that given Lausch's recommendation, “I don’t think the attorney general had much choice” but to name a special counsel.

What criminal offenses are implicated?

Based on the facts so far, McCord says the most relevant statute appears to be 18 U.S. Code 1924, which makes it a federal crime to “knowingly” remove classified documents with the “intent to retain” them “at an unauthorized location.” That statue was a misdemeanor until it was upgraded to a felony during the Trump administration, with a prison sentence of up to five years.

What impact, if any, will this have on the separate investigation into Trump’s documents at Mar-a-Lago?

Legally, there is no reason at this point to believe it will have an impact on the most serious potential charges facing Trump. The thrust of the Trump investigation is obstruction: He was subpoenaed to return all the documents he had taken from the White House, and when prosecutors learned that he may have failed to do so, a court ordered a search of his residence, where more material was found, including in Trump’s private office.

By contrast, Biden’s lawyers say they immediately turned over the material to the National Archives. Michael Zeldin, a former Justice Department prosecutor and independent counsel, said the two cases “are not factually equivalent” and that the investigation into Biden’s documents will have “no bearing” on the Trump probe.

Other legal observers believe, however, that, at a minimum, the discovery of classified documents in Biden’s office and home could make it harder for prosecutors to charge Trump with mishandling classified documents unless Biden or someone who was responsible for removing the documents is also charged.