Garland had initially referred the matter of Biden’s classified documents to John Lausch, a Chicago-based U.S. attorney who had been appointed by Trump. His decision to house it under a special counsel ratchets up the legal stakes for Biden, who has stressed that he takes the matter seriously while saying he was surprised to learn about the existence of the documents.
It also creates political problems for the president, coming just as Trump is expected to face a potential charging decision for his own mishandling of classified documents.
Trump has claimed to have declassified all of the records before leaving office, but no evidence has emerged to support that contention, and his lawyers have refused to echo that claim in court. He also has insisted that the documents found in his Mar-a-Lago home were stored in a safe and secure manner.
Biden initially leaned on a similar line when asked about the presence of sensitive records in his Wilmington garage, next to his famous Corvette.
“By the way, my Corvette’s in a locked garage. OK. So it’s not like it’s sitting out in the street,” he said.
Still, there are significant differences in the timeline of the Trump-related documents and those found at Biden’s office and home. The National Archives discovered the presence of records with classified markings at Mar-a-Lago in January 2022, after a protracted effort to reclaim presidential records that Trump had warehoused at his estate since leaving office. Trump sent an initial batch of 15 boxes back to the archive that month.
After discovering the material marked classified, NARA forwarded the matter to the Justice Department, which soon subpoenaed Trump’s presidential office for all other documents with classified markings. The department also subpoenaed security footage to review the handling of the documents, which were kept in a storage room and Trump’s personal office.
But DOJ investigators said evidence they collected showed that even after the subpoena, Trump’s team had not turned over everything in their possession — even as the ex-president’s aides presented DOJ with a signed attestation that all subpoenaed documents had been turned over. The FBI discovered another trove of sensitive records after executing a search at Trump’s estate in August, including some that he kept in his personal office.
Biden’s team, by contrast, has repeatedly emphasized their proactive approach to the discovery of the records. In two statements, White House counsel Richard Sauber said Biden’s own team discovered the documents, immediately alerted NARA and the Justice Department and returned the records. Similarly, they conducted additional searches and have pledged to cooperate with DOJ investigators.
Trump sued last year to demand the return of documents seized by the FBI, a battle that reached the Supreme Court, only to result in a sharp rejection of his effort to sideline the DOJ investigation. Republicans and Democrats on Capitol Hill have demanded assessments of the potential damage to national security caused by the handling of the documents.