President Joe Biden’s lawyers notified the Justice Department that they had found additional classified records at his Delaware mansion just hours before the nation’s attorney general on Thursday took the remarkable step of assigning a special counsel to independently investigate the matter.
On Saturday, the White House revealed that a total of six classified documents were found inside a room at Biden’s Wilmington home, five more than initially reported.
An official statement blamed the mixup on the way the president’s personal lawyers—who don't have national security clearances—took strict measures to not improperly access the records they found while searching a room next to the garage on Wednesday. It explained how the initial claim, that only a single document was found there, was made before a White House lawyer with a national security clearance later found five more on Thursday.
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That White House attorney, Richard Sauber, released a statement on Saturday that tried to explain what happened.
“While I was transferring it to the DOJ officials who accompanied me, five additional pages with classification markings were discovered among the material with it, for a total of six pages. The DOJ officials with me immediately took possession of them,” his statement said.
The classified documents seem to stem from Biden’s time as former President Barack Obama’s vice president from 2009 until 2017, according to the White House.
The fresh details in the timeline also shed light on how the situation worsened immediately before Attorney General Merrick Garland publicly announced the appointment of Robert Kyoung Hur as special counsel. The former U.S. Attorney of Maryland, who has stellar conservative credentials, is tasked with investigating how the material came into Biden’s personal possession.
Biden’s personal lawyer, Bob Bauer, released a statement trying to explain the slow drip of information by claiming that the legal team is playing it safe—and wants to avoid getting in the way of the feds.
“The president’s personal attorneys have attempted to balance the importance of public transparency where appropriate with the established norms and limitations necessary to protect the investigation’s integrity. These considerations require avoiding the public release of detail relevant to the investigation while it is ongoing,” his statement said.
According to Biden’s team, his personal lawyers first “unexpectedly discovered Obama-Biden documents” on Nov. 2 at the Penn Biden Center, a Washington think tank where he worked from after leaving his term as vice president. They claim his lawyers immediately notified the National Archives and Records Administration, who soon looped in the agency’s inspector general, who in turn notified the Department of Justice. The DOJ assigned the U.S. Attorney of Northern Illinois, John R. Lausch Jr., to assess whether documents were mishandled from mid-November onwards.
According to Biden’s legal team, the situation worsened on Dec. 20, when his personal lawyers “inspected the Wilmington residence garage and identified a small number of potential records bearing classified markings.” They claim to have stopped searching and notified Lausch immediately, and the DOJ collected those records as well.
But then it got even more complicated on Wednesday, when Biden’s personal lawyers say they conducted additional searches at his Wilmington mansion and summer home in Rehoboth Beach. At the Wilmington home they came across a single page with a classified marking at a room next to the garage, the team claims.
“Once the President’s personal attorneys found this document, the President’s personal attorneys left the document where it was found and suspended their search of the specific space where it was located,” Bauer said in a statement.
He said the team later later moved on to the summer beach home but found nothing there, then returned to Washington, D.C. late that evening. On Thursday morning, Biden’s personal lawyers notified the federal prosecutor, Lausch, about the single page they’d found, Bauer said. Then at 1:15 p.m., AG Garland held a press conference announcing the appointment of a special counsel to look into the matter, an arrangement that affords investigators a greater degree of independence.
This developing scandal is a complex situation that threatens to embarrass the Biden administration just as the FBI criminally investigates his predecessor, former President Donald Trump, for putting the nation's security at risk by mishandling classified information.
The difference, of course, is that former President Trump hoarded nearly 100 classified documents at his oceanside Florida estate and refused to hand them over to the National Archives until the Palm Beach compound was raided by FBI agents in August 2022.
By contrast, the Biden White House asserts it is actively turning over documents as it finds them—even if it did so quietly until journalists uncovered what was going on.
Intent is an important consideration when a case of mishandled documents is referred for prosecution. Under the law, criminal charges may be applied to someone who “willfully retains” a government document they are not entitled to have, and “fails to deliver it on demand” to appropriate officials.
It remains unknown where either Biden or Trump fall on this continuum.
However, Trump has suggested he was aware of classified documents in his possession, which he later claimed he had declassified simply by “thinking about it.” Trump has also still not explained why, for months, he refused to turn over national security secrets he was no longer authorized to hold.
Biden, on the other hand, has claimed he had no idea the classified documents were in his home or at his think tank, and he has pledged to completely cooperate with the DOJ probe. Critics have countered that by keeping the discovery of the first set of classified documents from the public until after the midterm election, the Biden administration has been prioritizing politics over transparency.
The White House said in its own previous statement that any classified documents associated with Biden “were inadvertently misplaced, and the president and his lawyers acted promptly upon discovery of this mistake.”
