The US justice department is investigating a number of documents bearing highly sensitive classified markings stored at Joe Biden’s former institute in Washington from his time as vice-president in the Obama administration, the White House acknowledged in a statement on Monday.
The documents were found by Biden’s personal lawyers at the start of November when they closed out office space at the University of Pennsylvania’s Biden Center for Diplomacy, a thinktank where he was an honorary professor until 2019.
Biden’s personal lawyers sent the documents to the National Archives, which referred the matter to the justice department because of their sensitive nature, with some classified at the Top Secret/Sensitive Compartmented Information level, a source familiar with the matter said.
Merrick Garland, the attorney general, has since assigned the Trump-appointed US attorney in Chicago John Lausch to oversee the investigation alongside the FBI, a second person said. A spokesperson for the justice department declined to comment on the ongoing investigation.
“The White House is cooperating with the National Archives and the Department of Justice regarding the discovery of what appear to be Obama-Biden admin records, including a small number of documents with classified markings,” the White House counsel’s office said in a statement.
“On the day of this discovery, 2 November 2022, the White House counsel’s office notified the National Archives. The Archives took possession of the materials the following morning,” the statement added. “The discovery of these documents was made by the president’s attorneys.”
The new inquiry comes as the justice department is investigating Donald Trump’s unauthorized retention of national security materials and obstruction of justice after the FBI seized hundreds of records marked classified at his Mar-a-Lago resort in August.
Conservatives immediately seized on the news of the discovery. Mike Pence, the vice-president under Donald Trump, argued that the situation parallels the investigation into the deliberate attempt by Trump to hold on to classified documents taken from the White House, which eventually led to the FBI searching his properties after months of resistance from Trump’s team. “When the home of a former president of the United States … was raided by FBI agents, I was deeply troubled by that action at the time. And this double standard is just as troubling,” Pence told a conservative radio host.
Trump himself, as earlier reported by CBS News, wrote on his social media website Truth Social: “When is the FBI going to raid the many houses of Joe Biden, perhaps even the White House? These documents were definitely not declassified.”
The last part of the former president’s post appeared to draw a parallel between the two cases, referencing his disputed claim that the documents at Mar-a-Lago had been declassified, though no such evidence has publicly emerged and his lawyers have not repeated that in court.
But the circumstances of the Biden documents are also markedly different compared with the materials seized from Trump: Biden does not appear to have personally and willfully retained classified materials nor did he resist returning them to the government.
Trump was initially asked by the National Archives in 2021 to return documents it determined were missing, but put off the request for months. He then relented in December 2021, and agreed to return 15 boxes of materials to the government, which included a number of classified materials.
The presence of highly sensitive documents prompted the National Archives to make a referral to the justice department, which developed evidence that Trump had not fully complied with a grand jury subpoena from May demanding the return of any documents with classified markings.
That led to the FBI search of Mar-a-Lago, with the search warrant affidavit indicating that Trump was under criminal investigation for possible violations of the Espionage Act, which criminalizes the willful retention of national security materials, and potentially attempting to conceal classified documents.
But regardless of the strength of the legal case, the discovery of the documents at the Biden UPenn center will probably change the political optics for the justice department as it considers whether to charge Trump over mishandling classified materials.
The incoming Republican chair of the House oversight committee, James Comer, told reporters on Capitol Hill on Monday that he will launch an inquiry into what documents were kept and whether a double standard was being applied to Biden compared with Trump.
“How ironic,” Comer said. “President Biden was quick to criticize President Trump for having classified documents. I wonder if the National Archives is going to ask the FBI to raid the White House tonight?”
Asked about the Biden classified docs, Rep. Aguilar tells reporters that it is "Republican hypocrisy at its finest"
— Nicholas Wu (@nicholaswu12) January 10, 2023
"What President Biden did is...exactly the way that you should handle this. " Says Biden following "established protocol" + go from there
House Democrats defended Biden, with Representative Pete Aguilar saying there was no comparison between the documents found at Biden’s old office and the ones unearthed by the FBI after searching Trump’s Mar-a-Lago resort. Aguilar noted that Biden’s personal lawyers immediately turned over the documents they had found, calling the conservative outcry “Republican hypocrisy at its finest”.
“What President Biden did is … exactly the way that should handle this,” Aguilar told reporters, noting that Biden’s team followed “established protocol” and that the president is “handling this the way that he should”.
Biden, who is in Mexico City for a summit with the leaders of Mexico and Canada, did not respond to questions shouted by reporters, including one asking about the classified documents.
Meanwhile, the Ohio representative Mike Turner, the top Republican of the House permanent select committee on intelligence, sent a letter to the director of national intelligence requesting an immediate investigation into Biden over the documents.
Lausch, the US attorney, is one of two Trump-appointed US attorneys that Garland kept on after the end of the previous administration in part because at the time, he was engaged in a high-profile bribery investigation into former Democratic Illinois House speaker Michael Madigan, the source said.
