Garland appoints special counsel in Biden documents investigation

Among the items from Joe Biden's time as vice president are 10 classified documents including US intelligence memorandums and briefing materials that covered topics including Ukraine, Iran and the United Kingdom, according to one person familiar with the find. 

There was also a memo from Biden to President Obama as well as two briefing memos preparing Biden for phone calls – one with the British prime minister, the other with Donald Tusk, the former prime minister of Poland who served as president of the European Council from 2014-2019.

It's unclear how much of this material remains sensitive.

Senate Judiciary Chairman Dick Durbin said in a statement Thursday that he expects the special counsel probe into Biden's classified documents will be done fairly.

He also sought to draw a distinction between the current administration and that of former President Donald Trump and his attorney general, Bill Barr.

“Rather than acting as the President’s personal lawyer like Bill Barr, Attorney General Garland’s appointment of a Special Counsel assures the American people that this investigation will be done fairly and with integrity,” Durbin said in a statement. 

GOP Rep. Ken Buck said in a statement that he sent a letter to President Joe Biden requesting he release the visitor logs for his Wilmington residence in light of more classified documents being found there.

"As a matter of national security and transparency, the public deserves to know who visited this residence and had access to these unsecured, classified documents," Buck said in the letter.

What the White House is saying: Biden’s team has denied any wrongdoing and predicted that he’ll be cleared of any criminality in the case of the documents.

“We have cooperated from the moment we informed the Archives that a small number of documents were found, and we will continue to cooperate,” Richard Sauber, a senior White House lawyer, said in a statement. He added that the documents were “inadvertently misplaced” and not illegally mishandled.

President Joe Biden is now facing a special counsel investigation after Obama-era classified files were found at his private office in Washington and his home in Delaware.

Former US attorney Robert Hur will lead the probe into the handling of the documents from when Biden was vice president.

This is a ground-moving moment for the Biden presidency, and a significant setback as well. With the 2024 election cycle approaching, Biden now faces a major investigation, as well as a bevy of Republican congressional inquiries now that the GOP has taken over the US House of Representatives.

Here are some of the most pressing questions:

• Why did Garland appoint a special counsel? As attorney general, Garland has the power to appoint a special counsel if there are “extraordinary circumstances” or if it would be “in the public interest” to bring in an independent prosecutor. Clearly, a criminal probe that potentially implicates the sitting president would fit the bill. “The extraordinary circumstances here require the appointment of a special counsel for this matter,” Garland said Thursday. “This appointment underscores for the public the department’s commitment to independence and accountability."
• Who is Robert Hur? He is currently in the private sector, but has had a long career at the Justice Department. Hur was appointed by Trump to serve as the US attorney for Maryland, and was unanimously confirmed by the Senate in 2018. During his tenure, he oversaw high-profile corruption cases against Baltimore city officials and police officers, as well as Maryland state lawmakers, according to his official biography.
• What are the possible crimes? Garland specifically authorized Hur to investigate the “possible unauthorized removal and retention of classified documents or other records.” He is also permitted to investigate “any matters that arose from the initial investigation” handled by the US attorney in Chicago, and anything that “may arise directly from” his own investigation. Biden’s team has denied any wrongdoing and predicted that he’ll be cleared of any criminality. “We have cooperated from the moment we informed the Archives that a small number of documents were found, and we will continue to cooperate,” Richard Sauber, a senior White House lawyer, said in a statement, adding that the documents were “inadvertently misplaced” and not illegally mishandled.
• Could Biden be charged? Simply put, it depends on the facts and the timing. Justice Department regulations block federal prosecutors from indicting a sitting president. Therefore, even if Hur concludes that Biden broke the law, he can’t charge Biden while he’s in the White House. Theoretically, Hur could indict Biden in 2025 if his probe somehow drags past the 2024 presidential election, Biden loses the election, and then Hur concludes that Biden broke the law. The DOJ policy against indicting a sitting president impacted special counsel Robert Mueller. After wrapping up his probe in 2019, Mueller stopped short of charging then-President Donald Trump, despite finding substantial evidence that Trump repeatedly obstructed the Russia investigation.

Read more about the probe and implications here.

Kathy Chung, the deputy director of protocol at the Pentagon, was interviewed as part of the Justice Department’s investigation into the handling of classified documents from President Biden’s time as vice president, a Defense Department official tells CNN.

Chung previously worked as Biden’s executive assistant while he was vice president. She did not respond to CNN’s attempts to contact her. Chung’s interview was first reported by NBC News.

Pentagon spokesman Brig. Gen. Patrick Ryder declined to comment earlier today, referring questions to the Justice Department and saying only that Chung “does remain employed by the Department of Defense.”

Classified documents were discovered in Biden’s former think tank office, the Penn Biden Center for Diplomacy and Global Engagement, last fall in Washington, DC. Ten classified documents were found there, which led to a search that found classified documents at Bidens’ home in Wilmington, Del. 

CNN's Arlette Saenz contributed to this report.

Attorney General Merrick Garland decided to appoint a special counsel soon after receiving the recommendation last week from US Attorney John Lausch Jr. – and before Garland traveled to Mexico with President Joe Biden on Sunday night, sources tell CNN.

Lausch led the preliminary inquiry, and Justice Department officials say Garland based his decision on the facts that investigators presented him from that probe.

But one Justice official said the White House’s public statements earlier this week, offering an incomplete narrative about the classified documents from Biden’s time as vice president, reinforced the need for a special counsel.

The misleading statements created the impression that Biden’s team had something to hide, the official said.

Press secretary Karine Jean-Pierre said the White House found out that Attorney General Merrick Garland had appointed a special counsel when it was announced during a news conference this afternoon.

Jean-Pierre confirmed to reporters on Thursday that the White House was not given a heads up in advance of that announcement, but when asked about when President Joe Biden was made aware of the news, she was not specific.

Biden was attending former Defense Secretary Ash Carter’s funeral when Garland announced the special counsel, who will review the Obama-era classified documents found in the president’s Wilmington residence and in his former private office in Washington. 

“We were not given a heads up and we learned from the press conference,” Jean-Pierre said in the briefing.

Pressed by a reporter who pointed out that Biden was attending a funeral when the news broke, she responded, “Look, he was at a funeral, to your point. Maybe one of his senior advisers may have told him. I actually don’t know specifically when he knew, but what I can say to you, he was, we were not given a heads up. That I can confirm.”  

White House press secretary Karine Jean-Pierre tried to defend the administration’s response after the president's aides found Obama-era classified documents in Joe Biden’s home and former private office.

Pressed on why the administration did not disclose the discovery of the second batch of documents when addressing the initial documents earlier this week, Jean-Pierre said the administration waited until the Biden’s lawyers concluded a search prompted by the initial discovery.

“Look, as the lawyers said, we have been working closely with the Department of Justice and coordinating a search that was still ongoing to ensure any additional documents were in the proper possession of the government,” Jean-Pierre told reporters Thursday. “After that search, after the search concluded last night, we released a statement disclosing the facts from that search, as you all know, this morning. This is all part of the Justice Department process, and you heard the attorney general speak to this today, so we are being very careful to be fully cooperative with the Department of Justice and providing details as appropriate as part of that process.” 

In a follow-up question, she told CNN’s Phil Mattingly that the president’s lawyers have concluded their search for any additional classified material. 

And she defended the administration’s decision to exclude any reference to the second batch of documents in addressing the initial batch earlier this week, even though some documents had already been discovered and referred to National Archives.

“We're trying to do this by the book – as I said yesterday, this was under review by the Department of Justice and the process is as such: when the when the president’s lawyers realized that the documents existed, that they were there, they reached out to the archives, they reached out to the Department of Justice – rightfully so, may I say, that is what you're supposed to do, as lawyers, that's what they did – and they have fully been cooperating with the Department of Justice,” she added.

In a subsequent exchange, Jean-Pierre declined to say if the president was confident that there are no more classified documents in additional locations.

“I can just refer you to what his team said — this search is complete, he is confident in this process, and I will leave it there,” she said.

The discovery of classified documents at President Joe Biden’s private office in Washington, DC — and subsequently his home in Wilmington, Delaware — has cast a shadow over the White House in recent days.

Some of the president’s closest allies and senior officials have been left entirely in the dark on a political crisis enveloping the White House. 

Then on Thursday afternoon came another bombshell headline: The appointment of a special counsel to oversee the investigation. 

People inside and close to the White House have been watching with concern and trepidation since Monday — privately grousing that they felt they had no choice but to simply wait, like everyone else, to see what new information would surface.

In particular, Biden allies had been monitoring the Justice Department closely all week for signs the attorney general would appoint a special counsel. With Thursday’s announcement tapping Robert Hur to serve in that role, aides acknowledge that the coming weeks will present a new level of challenge to promote Biden's agenda in anticipation of an expected announcement he is seeking reelection.

The circle of advisers aware of the situation was kept extraordinarily tight in the two months between the discovery of the initial documents at Biden's Washington office and Monday night, when the matter emerged publicly for the first time.

Those kept informed included a few top White House advisers and Biden's personal attorneys, most of whom have long histories with the president, according to people familiar with the matter. There was not a broad discussion inside the White House of how to handle the matter after the initial discovery of documents or the weeks afterward.

That left many officials uncertain about whether additional disclosures were coming, and a certain degree of frustration at what seemed to be an information blackout.

All of this has also prompted a bunker mentality to set in inside the White House, with press aides answering questions with tightly-scripted referrals to the White House counsel's office.

Read more here.