NEW YORK — Virtually everything was going right for President Joe Biden as he opened the year.
His approval ratings were ticking up. Inflation was slowing. And as Democrats united behind his likely reelection campaign, Republicans were at war with themselves after a disappointing midterm season.
But on Thursday, Biden’s political outlook veered into more uncertain territory after Attorney General Merrick Garland appointed a special counsel to investigate the Democratic president’s handling of classified documents.
Andrew Harnik, Associated Press
President Joe Biden responds to a question after speaking about the economy Thursday in the Eisenhower Executive Office Building on the White House Campus in Washington.
Democrats publicly and privately conceded that the stunning development was at best an unwelcome distraction at an inopportune time that muddies the case against Donald Trump. The Republican former president is facing a special counsel of his own and is under federal criminal investigation for his handling of classified documents and other potential transgressions.
There are major differences between the two cases. Most notably, there is no suggestion that Biden purposefully tried to prevent the documents discovered at his home or office from being turned over or that he was even aware of their presence. Trump, who is being probed for potentially obstructing investigators, also had far more classified documents in his possession.
But Thursday’s appointment of a special counsel nonetheless thrusts legal uncertainty over the sitting president and could revive debate among Democrats about the wisdom of him seeking a second term.
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AP file
Jan. 20, 2017: Biden's two terms as vice president to President Barack Obama end.
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AP file
Mid-2017-2019: Biden periodically uses an office at the Penn Biden Center, a think tank in Washington.
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AP file
Jan. 20, 2021: Biden is sworn in as president.
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AP file
Nov. 2, 2022: Biden's personal attorneys come across Obama-Biden administration documents in a locked closet while packing files as they prepare to close out Biden's office in the Penn Biden Center. They notify the National Archives.
Nov. 3, 2022: The National Archives takes possession of the documents.
Nov. 4, 2022: The National Archives informs the Justice Department about the documents.
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AP file
Nov. 8, 2022: Midterm elections.
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White House via AP, File
November-December 2022: Biden's lawyers search the president's homes in Wilmington, Delaware, and Rehoboth Beach, Delaware, to see if there are other documents from his vice presidency.
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AP file
Nov. 9, 2022: The FBI begins an assessment of whether classified information has been mishandled.
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AP file
Nov. 14, 2022: Garland assigns U.S. attorney John Lausch to look into whether a special counsel should be appointed to investigate the matter.
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AP file
Jan. 5, 2023: Lausch advises Garland he believes that appointing a special counsel is warranted.
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AP file
Jan. 9, 2023: CBS News, followed by other news organizations, reveals the discovery of the documents at the Penn Biden Center. The White House acknowledges that "a small number" of Obama-Biden administration records, including some with classified markings, were found at the center. It makes no mention of the documents found in Wilmington.
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AP file
Jan. 10: 2023: Biden for the first time addresses the document issue. During a press conference in Mexico City, he says he was "surprised to learn that there were any documents" in the Penn Biden Center and doesn't know what's in them. He does not mention the documents found in Wilmington.
Jan. 11, 2023: Biden's lawyers complete their search of Biden's residences, find one additional classified document in the president's personal library in Wilmington. NBC News and other news organizations reveal a second batch of documents has been found at a location other than the Penn Wilson Center.
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AP file
Jan. 12: 2023: Biden's lawyer informs Lausch that an additional classified document has been found. Richard Sauber, special counsel to the president, reveals publicly for the first time that documents were found in Biden's Wilmington garage and one document was found in an adjacent room. Garland announces that he has appointed Robert Hur, a former U.S. attorney in the Trump administration, to serve as special counsel.
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AP file
Then-President Donald Trump left the White House for Florida ahead of President-elect Joe Biden's inauguration. According to the General Services Administration, members of Trump's transition team were responsible for packing items into boxes, putting boxes on pallets and shrink-wrapping those pallets so they could be transported.
Prior to shipping, GSA said it "required the outgoing transition team to certify in writing that the items being shipped were required to wind down the Office of the Former President and would be utilized as the Office transitioned to its new location in Florida."
GSA did not examine the contents of the boxes and "had no knowledge of the contents prior to shipping," according to an agency spokesperson. GSA was also not responsible for the former president's personal belongings, which were transported by a private moving company.
Under the Presidential Records Act, presidential records are considered federal property — not private — and are supposed to be turned over to the National Archives and Records Administration. Multiple federal laws govern the handling of classified and sensitive government documents, including statutes that make it a crime to remove such material and retain it at an unauthorized location.
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AP file
After NARA realized that documents from Trump's presidency seemed to be missing from the material that it received as he left office, the agency requested the records from Trump on or about May 6, 2021, according to a heavily redacted affidavit made public Aug. 26, 2022.
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AP file
The special agent in charge of NARA's Office of the Inspector General sent a referral to the Justice Department via email after a preliminary review of the boxes revealed numerous classified documents.
"Of most significant concern," they wrote, according to a heavily-redacted affidavit released last week, "was that highly classified records were unfoldered, intermixed with other records, and otherwise unproperly (sic) identified."
After an initial review of the NARA referral, the FBI opened a criminal investigation into the matter.
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AP file
Trump's Save America PAC released a statement insisting the return of the documents had been as "routine" and "no big deal."
Trump insisted the "papers were given easily and without conflict and on a very friendly basis," and added, "It was a great honor to work with NARA to help formally preserve the Trump Legacy."
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AP file
The Justice Department sent a letter to Trump's lawyers seeking immediate access to the material, citing "important national security interest."
"Access to the materials is not only necessary for purposes of our ongoing criminal investigation, but the Executive Branch must also conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps," the department wrote.
Trump's lawyers requested an additional extension.
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Three FBI agents and a DOJ attorney went to Mar-a-Lago to collect additional material offered by a Trump attorney in response to the subpoena. They were given "a single Redweld envelope, double-wrapped in tape, containing the documents," according to an Aug. 30 filing.
That envelope, it was later found, contained 38 documents with classification markings, including five documents marked confidential, 16 marked secret and 17 marked top secret.
During the visit, the filing said, "Counsel for the former President offered no explanation as to why boxes of government records, including 38 documents with classification markings, remained at the Premises nearly five months after the production of the Fifteen Boxes and nearly one-and-a-half years after the end of the Administration."
Trump's lawyers also told investigators that all of the records that had come from the White House were stored in one location — a Mar-a-Lago storage room. Investigators were permitted to visit the room, but were "explicitly prohibited" from opening or looking inside any of the boxes, they reported, "giving no opportunity for the government to confirm that no documents with classification markings remained."
The Justice Department was also given a signed certification letter stating that a "diligent search" had been completed and that no documents remained.
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AP file
The Justice Department filed an application for a search and seizure warrant of Mar-a-Lago, citing "probable cause" that additional presidential records and records containing classified information remained in various parts of the club.
"There is also probable cause to believe that evidence of obstruction" would be found, read the heavily-redacted copy of the affidavit laying out the FBI's rationale for the search.
The Justice Department also revealed in the Aug. 30 filing that it had found evidence "that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government's investigation."
U.S. Magistrate Judge Bruce Reinhart in South Florida approved the application that same day.
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AP file
The FBI executed the search at Mar-a-Lago, seizing 36 items of evidence, including boxes and containers holding more than 100 classified records, an order pardoning Trump ally Roger Stone and information about the "President of France."
Agents found classified documents both in the storage room as well as in the former president's office — including three classified documents found not in boxes, but in office desks.
They included items so sensitive that, "In some instances, even the FBI counterintelligence personnel and DOJ attorneys conducting the review required additional clearances before they were permitted to review certain documents."
"That the FBI, in a matter of hours, recovered twice as many documents with classification markings as the 'diligent search' that the former President's counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter," the Justice Department wrote.
Trump and his allies, meanwhile, cast the search as a weaponization of the criminal justice system aimed at damaging him politically as he prepares for another potential White House run.
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AP file
Judge Reinhart unsealed the warrant that authorized the FBI to search Mar-a-Lago, which details that federal agents were investigating potential violations of three federal laws, including the Espionage Act.
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AP file
A highly redacted version of the affidavit laying out the FBI's rationale for searching Mar-a-Lago was released.
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Department of Justice via AP
The Justice Department responded to Trump's request for a special master in a filing that included new details about the investigation, including an assertion that classified documents were "likely concealed and removed" from a storage room at Mar-a-Lago as part of an effort to obstruct the probe.
It included a photograph of some the material found at the club, including cover pages of paperclip-bound documents — some marked as "TOP SECRET//SCI" with bright yellow borders and one marked as "SECRET//SCI" with a rust-colored border — splayed out on a carpet at Mar-a-Lago.
"Terrible the way the FBI, during the Raid of Mar-a-Lago, threw documents haphazardly all over the floor (perhaps pretending it was me that did it!), and then started taking pictures of them for the public to see," Trump responded. "Thought they wanted them kept Secret?"
“No one’s going to say this is helpful,” veteran Democratic strategist James Carville said. “It’s pretty evident that’s not the case.”
As Democrats recoiled into a defensive posture, Trump’s would-be Republican rivals in 2024 acknowledged that the contours of the upcoming race had shifted.
Trump “is the luckiest man in American politics,” said John Bolton, who served as national security adviser under Trump and is considering a Republican White House bid. “This ought to be disqualifying to both of them.”
Thus begins a messy election season in which the current and former presidents of the United States are both under investigation by special counsels as they gear up for a potential rematch in 2024. Many voters in both parties were already calling for a new generation of leadership to emerge in the nascent presidential contest. Such calls are now growing louder.
“On many political fronts, Biden’s touted 2024 campaign is potentially vulnerable,” said Norman Soloman, a progressive Democrat who leads the so-called Don’t Run Joe campaign, which is already running television ads against Biden in key states. “Democrats and the country as a whole would be much better off this year and next if he’s not running for president.”
The 80-year-old president has already indicated he plans to seek a second term, but he has yet to make a final decision. His allies believe he is likely to make a formal announcement after the end of March.
So far, at least, no high-profile Democrats appear willing to challenge Biden in a prospective presidential primary contest. Privately, however, some Democratic officials believe the new federal probe may help motivate an insurgent candidate.
One of Biden’s potential challengers, Vermont Sen. Bernie Sanders, recently told The Associated Press that he would make a decision about his 2024 intentions “at the appropriate time.” Nina Turner, who chaired Sanders’ 2020 presidential campaign, said after Thursday’s announcement that she hopes a “freedom-fighting progressive” mounts a primary challenge against Biden in 2024.
“The American people certainly deserve better choices — Republicans and Democrats,” Turner said, applauding the government’s decision to review Biden’s handling of classified documents in the same way it’s investigating Trump. “We shouldn’t have these men shoved down our throats.”
Garland’s appointment of a special counsel followed Biden’s acknowledgement Thursday morning that documents with classified markings from his time as President Barack Obama’s vice president were found in the garage of his Delaware home and in his personal library, in addition to documents already discovered in a locked closet at an office he used after leaving the White House.
Garland said Biden’s lawyers informed the Justice Department on Thursday morning of the discovery of a classified document at Biden’s home, after FBI agents first retrieved other documents from the garage in December.
Speaking to reporters Thursday, Biden said he was cooperating “fully and completely with the Justice Department’s review.”
“People know I take classified documents and classified material seriously,” Biden said. He added: “My Corvette’s in a locked garage.”
To be clear, there are stark differences between the cases, including the volume of documents discovered and the gravity of the ongoing grand jury investigation into the matter at Mar-a-Lago, Trump’s Palm Beach, Florida, home.
Roughly 300 records with classification markings were recovered from Mar-a-Lago, a private club that hosts constant events. The search of Trump’s property was the culmination of months of back-and-forth between the government and Trump’s representatives, who repeatedly resisted efforts to return the missing documents. And the Justice Department says classified documents were “likely concealed and removed” from a storage room as part of what they allege was an effort to obstruct the federal investigation.
A warrant for the search showed the FBI was investigating crimes including the willful retention of national defense information and efforts to obstruct the federal probe.
Trump has nonetheless seized on the news, seeking to use it to undermine the investigation into his actions.
“It’s over,” Trump said in an interview with conservative talk radio host Mark Levin on Thursday evening. “When all of these documents started coming out and Biden had them, it really changed the complexion and the intensity that they were showing to me because, you know, what they did is — I don’t say far worse, I did nothing wrong — what they did is not good. What they did is bad.”
