President Joe Biden’s expectations for a quick resolution of a probe into his mishandling of classified documents have been dashed, as a steady drip of new developments has tied it into political knots.
Although it appears to be a relatively straightforward investigation, the case has become politically entangled with separate questions about the mishandling of classified material by former President Donald Trump and now former Vice President Mike Pence.
“There is a difference between legally entangled and politically entangled,” said Kel McClanahan, executive director of the nonprofit public interest law firm National Security Counselors. “If you take the politics out of it, the two are completely separate cases.”
The situation has raised questions inside and outside the Justice Department about whether Attorney General Merrick Garland or senior officials should coordinate the investigations to give the public greater confidence about how they’re being handled, according to current and former government officials.
That could be seen as interfering in the probes by two special counsels and goes against the department’s usual practice, some of the people said. There’s no indication that Justice Department leaders are discussing those options.
The cases are on very different timelines, which complicates any resolution. FBI agents retrieved classified documents from Trump’s residence at Mar-a-Lago in August, while a special counsel wasn’t appointed to look into Biden until mid-January. But Trump and his lawyers have adopted an antagonistic approach that has caused his investigation to drag on, while Biden’s team has sought to speed things up.
Failing to coordinate the cases could end up hurting them, if it leaves the public with the impression that they weren’t treated equally, especially as Biden is expected to run for reelection and Trump remains the only announced GOP candidate for 2024.
Some national security experts say investigators should just press on and let the chips fall.
“If it so happens they both are wrapping up at the same time then I think there would be discussions about making public statements at the same time,” said Mary McCord, former acting head of the Justice Department’s national security division who is now a visiting professor at Georgetown University Law Center. “But I wouldn’t expect the department to hold one up or accelerate the other based on timing.”
Biden told reporters earlier this month he anticipated the documents probe would wrap up soon. Since then, the president’s team has discovered more classified documents in his home — a fourth batch was found Friday, from not only Biden’s vice presidency but also his years in the Senate, which ended in 2009.
Still, the legal standard for criminal charges for mishandling classified information has generally required prosecutors to show that a person intentionally kept the materials. And Justice Department practice has been not to charge sitting presidents, although that would not protect any members of Biden’s inner circle from potential legal jeopardy if they were found to have been involved.
Republicans have used the Biden documents to argue that the investigation into Trump was heavy-handed and politically motivated. Tuesday’s revelation from Pence’s attorney that “a small number” of classified documents were found at his home muddies the cases further.
“Voters aren’t seeing a huge difference in their minds between the two cases,” said Democratic strategist Carly Cooperman.
An ABC News/Ipsos poll of 532 adults conducted Jan. 20-21, before the latest batch of Biden documents was uncovered, found that 77% believed that Trump acted inappropriately in his handling of classified documents, while 64% said the same of Biden. There were some distinctions: 43% said Trump’s was “more serious,” 20% said Biden’s was more serious, and 30% said they were equally serious.
There are stark differences in the facts surrounding the Biden and Trump cases and Garland decided to appoint a special counsel to independently oversee each. Garland declined to answer a question on Tuesday about whether he will appoint a special prosecutor to look at the Pence matter.
Given the nature of the probes, it’s unlikely they will come to a conclusion quickly.
Jack Smith, the special counsel investigating how Trump handled documents, also has been overseeing the investigation into efforts by Trump and his allies to overturn the 2020 presidential election. The special counsel investigating how Biden’s documents were handled, Robert Hur, has yet to formally begin his work, although activity has proceeded under a US attorney who has been handling the case.
Garland has said each case is being driven based on their own facts.
“The people we choose for special counsel are experienced prosecutors,” Garland said Thursday. “They know how the Justice Department works. They know what the department’s practices are. I’m fully confident that they will resolve these matters one way or the other in the highest traditions of the department.”
That the investigations involve two presidents and a former vice president also means they will move more slowly, as prosecutors double- and triple-check their work, said Bradley Moss, a national security lawyer who has worked on similar cases. Prosecutors don’t want to make a mistake in such a high-profile case and they also have to consider how potential jurors would see a case.
“It is not so much that the legal analysis changes as it is that prosecutors have to take into consideration additional variables that could sway the jury,” he said.
David Kelley, a former US attorney for the Southern District of New York, said prosecutors will decide cases based on whether the facts support charges, even if they involve public figures.
But prosecutors also take into consideration what’s in the public interest, he said. The considerations include that no one is above the law, that respecting classified documents is important, and that responding to investigators honestly is important, he said.
FBI Director Christopher Wray said Thursday that the agency has investigated mishandling of classified material regularly in recent years.
“People need to be conscious of the rules regarding classified information and the appropriate handling of it,” he said. “Those rules are there for a reason.”
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(With assistance from Greg Farrell.)
