The appointment of Robert K. Hur comes two months after the attorney general named a special counsel to investigate former President Donald J. Trump’s mishandling of classified material.
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WASHINGTON — Attorney General Merrick B. Garland appointed a special counsel on Thursday to investigate how classified documents had ended up in President Biden’s private office and home, opening a new legal threat to the White House and providing ammunition to its Republican opponents.
Mr. Garland assigned Robert K. Hur, a veteran prosecutor who worked in the Trump administration, to examine “the possible unauthorized removal and retention of classified documents or other records discovered” at Mr. Biden’s think tank in Washington and his residence in Wilmington, Del., according to an order signed by the attorney general.
The White House promised to fully cooperate while insisting prosecutors would find only unintentional errors. People close to the situation said several Biden associates had already been interviewed. But the decision to open a full investigation put both the president and the attorney general in awkward positions at the same time another special counsel appointed by Mr. Garland considers whether to charge former President Donald J. Trump or his associates with mishandling sensitive documents and obstructing efforts to retrieve them.
The circumstances in the Biden and Trump cases are markedly different. Mr. Trump resisted requests to return documents for months, even after being subpoenaed, while as far as is known, Mr. Biden’s lawyers found the papers without being asked and turned them over promptly. But as a political matter, the new investigation will muddy the case against Mr. Trump, who is already using it to argue that he is being selectively persecuted by the administration of a president he plans to challenge in 2024.
Mr. Biden, who excoriated Mr. Trump for being “irresponsible” with national secrets, now has to answer for his own team’s misplacement of sensitive papers. Moreover, his White House did not disclose to the public the discovery of the documents from his time as vice president for two months, waiting until after the November midterm elections, when it might have damaged Democrats.
And as a new timetable outlined by Mr. Garland on Thursday made clear, even then the White House did not fully reveal the extent of the situation in its original statement. That statement, released on Monday, confirmed a media report about a first batch discovered at his think tank in November but made no mention of a second batch found at his Delaware home in December.
Only on Thursday, three days after that initial statement, did the White House confirm media reports about the second batch, which was discovered in the garage of Mr. Biden’s home in Wilmington, and a final document found nearby on Wednesday night.
When a reporter asked Mr. Biden at an unrelated event on Thursday why classified documents were kept along with his prized Corvette, Mr. Biden replied: “My Corvette is in a locked garage. OK? So it’s not like they’re sitting out in the street.”
“But as I said earlier this week,” he added, “people know I take classified documents and classified material seriously. I also said we’re cooperating fully and completely with the Justice Department’s review.”
Karine Jean-Pierre, the White House press secretary, said the president had not been informed in advance of Mr. Garland’s decision to appoint a special counsel. She declined to clarify what initially prompted the search, how long it progressed or why the White House did not inform the public earlier.
Mr. Biden, she said, “was kept informed throughout,” but does not know what is in the documents. “The search is complete, he is confident in this process, and I will leave it there,” she added.
But her account of the discovery of the original batch of documents appeared at odds with the Justice Department timetable. “We did this by the book, and what I mean by that is the moment that the lawyers discovered that the papers, the documents were there, they reached out to the archives, they reached out to the Department of Justice,” she said.
In fact, according to the department, the White House informed the National Archives and Records Administration but not Justice. The department learned about the documents only when notified by the archives. A person familiar with the Biden team’s thinking, who requested anonymity to discuss sensitive legal matters, said the president’s lawyers had contacted the archives with the understanding that it would inform other agencies that needed to know.
Once the Justice Department was brought in, the Biden team then dealt directly with prosecutors, including when the second batch and a final document were discovered. But it meant that the first batch was moved to the archives before the F.B.I. could examine them where they were originally found.
While White House officials privately played down the importance of Mr. Hur’s appointment, arguing that it would matter more in Washington political circles than in the rest of the nation, special prosecutor investigations have a way of distracting and even crippling a White House, especially if they spread beyond their original scope.
With the exception of President Barack Obama, every occupant of the Oval Office since Watergate has confronted a special prosecutor scrutinizing him or members of his staff, sometimes for relatively narrow matters but at other times for issues that have mushroomed into the threat of impeachment.
“An independent or special counsel investigation that touches on a White House can be significantly debilitating, especially if not isolated and managed,” said W. Neil Eggleston, who helped defend President Bill Clinton and represented a top aide to President George W. Bush during such inquiries before becoming White House counsel to Mr. Obama.
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In the Clinton White House, “responding to the investigation would occupy large parts of the day of the senior staff, the White House Counsel’s Office and the communications group,” said Mr. Eggleston. “There is limited bandwidth each day, and hours taken up by responding to an investigation are lost.”
The decision to select a special counsel to look into the handling of the documents comes at an extraordinary moment for Mr. Garland, who in November tapped Jack Smith, a former war crimes and public corruption prosecutor, to lead the investigations into Mr. Trump’s mishandling of government documents as well as his actions related to the Capitol attack on Jan. 6, 2021.
The appointment of Mr. Hur on Thursday was intended to insulate the Justice Department from accusations of partisanship at a time when the new G.O.P. majority in the House has embarked on an aggressive and open-ended investigation into what they claim is the Biden administration’s use of government power against Republicans.
“I strongly believe that the normal processes of this department can handle all investigations with integrity,” Mr. Garland told reporters. “But under the regulations, the extraordinary circumstances here require the appointment of a special counsel for this matter. 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.”
Richard Sauber, a White House lawyer overseeing the response to investigations, said the president’s team would cooperate. “We are 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,” he said in a statement.
Under Mr. Garland’s order, Mr. Hur is authorized to prosecute any crimes arising from the inquiry or to refer matters for prosecution by federal attorneys in other jurisdictions.
“I will conduct the assigned investigation with fair, impartial, and dispassionate judgment,” he said in a statement. “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.”
Mr. Hur, a partner at the white-collar law firm Gibson, Dunn & Crutcher, worked as an assistant federal prosecutor in Maryland from 2007 to 2014, then served in the deputy attorney general’s office in 2017 and 2018 during the Trump administration before being appointed U.S. attorney for Maryland, a position he left when Mr. Biden took office.
While U.S. attorney, Mr. Hur defied pressure from Mr. Trump’s Justice Department to prosecute John F. Kerry, Mr. Obama’s secretary of state, who drew Mr. Trump’s ire for arguing to preserve a nuclear agreement with Iran, according Geoffrey S. Berman, a former Trump-era U.S. attorney in Manhattan. In his memoir, “Holding the Line,” Mr. Berman wrote that after refusing to prosecute Mr. Kerry, Mr. Hur was assigned to take over the matter and ultimately declined to pursue charges as well.
In his statement on Thursday, Mr. Garland filled in some, if not all, of the gaps in the public timeline surrounding the discovery of the documents in Mr. Biden’s home and office.
Mr. Biden’s lawyers discovered the first batch of classified papers, said to include briefing materials on foreign governments from his time as vice president, on Nov. 2, just six days before the midterm elections, as they were closing down his office at the Penn Biden Center for Diplomacy and Global Engagement in Washington.
They alerted the archives, which retrieved them the next morning. Archives officials then informed the Justice Department on Nov. 4. The F.B.I. began an assessment of the situation on Nov. 9. On Nov. 14, Mr. Garland assigned John R. Lausch, the U.S. attorney in Chicago and a Trump appointee, to conduct a preliminary review to determine whether a special counsel was merited.
But the Biden team waited several weeks before coming to the conclusion, as Mr. Lausch’s review proceeded, that they should make sure there were no more surprises and conduct a search of other Biden properties. On Dec. 20, they found the second batch in Mr. Biden’s garage in Wilmington and notified Mr. Lausch. No classified papers were found at the president’s vacation home in Rehoboth Beach, Del.
Mr. Lausch, who stood next to Mr. Garland in impassive silence on Thursday, told the attorney general on Jan. 5 that a special counsel was warranted but the Chicago prosecutor declined to take the role himself because he plans to leave for the private sector early this year.
Four days later, the White House issued its public statement confirming the discovery of the original batch of documents in response to a CBS News report. On Wednesday night, as they completed their search, the Biden lawyers made a third discovery as they found one more single-page classified document in a room adjacent to the garage in Wilmington and notified the Justice Department. After media reports, the White House acknowledged publicly on Thursday that Mr. Biden’s aides had found the additional documents.
A person familiar with the Biden team’s thinking said lawyers did not want to announce what had happened until all the facts had been gathered. They were leery of offending Justice Department officials by going public prematurely and looking like they were litigating in the media, hoping that Mr. Lausch would conclude that no special counsel was needed.
Veteran law enforcement officials, however, said the Biden team raised questions by how they had acted after finding the first set of documents in November, particularly by notifying the archives but not the Justice Department or F.B.I., which are obligated to enforce laws related to the handling of national secrets.
“They created a situation in which the Justice Department was not directly involved initially,” said Timothy Flanigan, a former deputy White House counsel and Justice Department official under George W. Bush.
“The documents instead were taken out of context and passed through other hands, giving the department no opportunity to review for itself what kind of security controls were around them and what other things they were stored with,” he added.
Chuck Rosenberg, a former senior F.B.I. official, said bringing in the bureau at the beginning would have been wiser. “It is always better for the F.B.I. to know sooner, rather than later,” he said. “These types of investigations tend not to get better with age.”
Reporting was contributed by Adam Goldman, Katie Benner, Jim Tankersley and Karoun Demirjian.
Garland Appoints Special Counsel to Investigate Handling of Biden … – The New York Times