By Zachary Stieber
Attorney General Merrick Garland on Jan. 12 appointed a special counsel to investigate whether any person or group broke the law in the handling of classified materials found in an office President Joe Biden used, as well as one of Biden’s homes.
“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 facts and the law,” Garland, a Biden appointee, said in prepared remarks from the Department of Justice (DOJ) headquarters in Washington.
Garland picked Robert Hur, a former federal prosecutor, as special counsel.
The attorney general said the “extraordinary circumstances” at play required the appointment.
Regulations state that the attorney general will appoint a special counsel when he determines a criminal investigation is warranted and that investigation or prosecution by the Department of Justice “present a conflict of interest for the Department or other extraordinary circumstances” and that “under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.”
The appointment comes after lawyers for Biden said they discovered documents with classified markings inside offices Biden used from 2017 to 2019 as well as inside two areas of the president’s home in Wilmington, Delaware.
Garland’s briefing was the first time the Department of Justice publicly commented on the matter.
Biden has said he was “surprised to learn” of the discovery of documents inside the offices at Penn Biden Center in Washington. Earlier Thursday, he defended holding the documents at his home, telling reporters they were in a “locked garage” rather than “sitting out on the street.”
Richard Sauber, a lawyer for Biden, said in a statement after Garland’s announcement “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.”
The White House had said the initial discovery took place on Nov. 2, 2022, and that the National Archives and Records Administration (NARA), which is charged with taking possession of presidential records after an administration leaves office, was immediately notified. NARA, which declined to comment, was said to have received the materials the next day.
According to Garland, the DOJ was not notified of the matter until Nov. 4, 2022. The notification was made by the NARA inspector general’s office.
The public was not informed of any of the discoveries until Jan. 9, 2023.
Timeline of Classified Document Discovery (source)
- Nov. 2, 2022: President Biden’s attorneys find files with classified markings at Penn Biden Center, where president worked from 2017 to 2019. (White House)
- Nov. 2, 2022: Biden’s attorneys notify NARA of discovery. (White House)
- Nov. 3, 2022: NARA takes possession of documents. (White House)
- Nov. 4, 2022: NARA inspector general’s office alerts prosecutor with DOJ. (Attorney General Garland)
- Nov. 9, 2022: FBI launches assessment to try to figure out whether any classified information was mishandled, in violation of the law. (Garland)
- Nov. 14, 2022: Garland assigns U.S. Attorney Lausch to conduct an initial investigation. (Garland)
- Dec. 20, 2022: Biden’s lawyers inform Lausch that more documents bearing classified markings were found at Biden’s residence in Wilmington. FBI agents travel to location and secure the documents. (Garland and White House)
- Jan. 5, 2023: Lausch briefs Garland and advises further investigation by special counsel is warranted. (Garland)
- Jan. 9, 2023: White House discloses discovery of documents at Penn Biden Center. (White House)
- Jan. 12, 2023: Biden lawyers inform Lausch one more document was found at Biden’s home. (Garland)
- Jan. 12, 2023: White House discloses discovery of documents at Wilmington residence. (White House)
- Jan. 12, 2023: Garland appoints Richard Hur as special counsel. (Garland)
Lausch Recommended Special Counsel
Garland said Hur’s appointment was informed by an initial probe by U.S. Attorney for the Northern District of Illinois John Lausch, a Trump appointee who started probing after Biden lawyers revealed the first discovery.
Lausch was informed by lawyers for Biden on two additional occasions—on Dec. 20, 2022, and Jan. 5, 2023—that they’d found more classified materials, Garland said.
Lausch advised Garland that further investigation of the matter by a special counsel was warranted and Garland agreed.
Lausch said he was not available for any longer-term involvement because he plans to leave the Department of Justice soon, according to Garland. Lausch stood beside Garland but did not speak during the press conference. Neither Garland nor Lausch took questions.
Hur, who did not appear at the briefing, joined the DOJ in 2003 and worked there on and off until 2021.
Hur will investigate “whether any person or entity violated the law with this matter,” Garland said.
“I will conduct the assigned investigation with fair, impartial, and dispassionate judgment,” Hur said in a statement released by the DOJ. “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.”
Trump appointed Hur as a U.S. attorney in 2017. Hur announced in February 2021 that he was resigning to return to private practice.
Hur donated to then-Republican presidential candidate Sen. John McCain (R-Aiz.)’s campaign in 2008, according to federal records.
Republicans had been calling for Garland to appoint a special counsel, after he appointed Jack Smith as special counsel to oversee the investigation into former President Donald Trump’s handling of materials with classified markings.
“Will you appoint a special counsel to investigate President Biden’s alleged retention of classified records, as you did for President Trump?” Sen. Josh Hawley (R-Mo.) wrote to Garland in a recent letter.
Sen. Lindsey Graham (R-S.C.) said on Fox News that not appointing a special counsel would “hurt the country.”
Rep. Mike Rogers (R-Ala.), meanwhile, has asked the Pentagon whether Biden holding the records damaged national security while Rep. Mike Turner (R-Ohio) requested a damage assessment from the U.S. intelligence community, which carried out such an assessment on the records held by Trump.