After it was reported that a small number of Obama-era classified documents were found at Joe Biden’s home and in an office he used at a Washington think tank before his presidency, Attorney General Merrick Garland announced on January 12 that he had appointed a special counsel to review the papers and how they got there. Two days later, the White House said another five pages containing classified information had been found among documents at the president’s home in Wilmington, Delaware. On January 20, Justice Department investigators found six more classified documents during a 13-hour search of Biden’s home.
Though there are significant differences between this situation and the recovery of classified documents from former president Donald Trump’s Mar-a-Lago residence, Trump and his allies say it’s proof that the feds held the 45th president to a double standard. Here’s what we know so far.
What was found in Biden’s old office?
The classified materials were found in Biden’s office at the Penn Biden Center for Diplomacy and Global Engagement in Washington on November 2, days before the midterms. They were discovered by the president’s personal lawyers, who were packing up the office space he used periodically from mid-2017, after he served as vice-president, until he launched his presidential campaign in 2020. Sources told CBS News, which broke the story on January 9, that roughly ten documents were found in the office. The outlet reported:
The documents were contained in a folder that was in a box with other unclassified papers, the sources said. The sources revealed neither what the documents contain nor their level of classification. A source familiar with the matter told CBS News the documents did not contain nuclear secrets.
CNN reported on Tuesday that the classified documents consist of “U.S. intelligence memos and briefing materials” on topics “including Ukraine, Iran and the United Kingdom, according to a source familiar with the matter.”
But the New York Times reported that Biden’s team stopped rifling through the papers when they found the classified documents, so they don’t know exactly what was in them:
When Mr. Biden’s lawyers discovered the documents, they immediately cleared the room and stopped looking at the files, according to a person briefed on their account of the incident. As a result, the Biden team does not know how many classified documents had been in the closet and what all of their contents were, according to the person, who asked for anonymity to discuss sensitive information.
The documents are dated between 2013 and 2016, per CNN, and were found in three or four boxes that also contain unclassified materials that fall under the Presidential Records Act. There are special rules for handling classified documents, and under the Presidential Records Act, the president and vice-president are required to turn over all documents from their tenure to the National Archives.
What was found in Biden’s home?
On January 11, NBC News reported that more classified materials were found at a second location. At the time, there were few details, but the outlet said Biden aides had been conducting an “exhaustive” search for materials cleared out of the vice-president’s office in January 2017:
Since November, after the discovery of documents with classified markings in his former office, Biden aides have been searching for any additional classified materials that might be in other locations he used, said the source, who spoke on the condition of anonymity to provide details about the ongoing inquiry.
A day later, the White House issued a statement from Richard Sauber, the president’s special counsel, who said the administration is “fully cooperating” with the Justice Department and the National Archives and confirmed the discovery of additional documents following a search of the president’s other properties.
He said that a “small number of additional Obama-Biden Administration records with classified markings” were found at Biden’s Wilmington home. The majority of these were discovered in storage space in the residence’s garage while one was found in “an adjacent room.”
“As was done in the case of the Penn-Biden Center, the Department of Justice was immediately notified, and the lawyers arranged for the Department of Justice to take possession of these documents,” Sauber said.
On January 14, the White House announced that five additional classified pages had been found among the documents; that brought the total number of pages found at Biden’s home to six.
The Federal Bureau of Investigation removed more than half a dozen documents from Biden’s home during a 13-hour search on Friday, January 20. Six of those documents were classified, dating from Biden’s time as senator and vice president, according to the New York Times.
Biden’s personal attorney, Bob Bauer, revealed that the search had occurred a day later, saying in a statement that the Biden team offered to provide access to the house “in the interest of moving the process forward as expeditiously as possible.” He did not elaborate on what prompted the search.
“The F.B.I. on Friday executed a planned, consensual search of the president’s residence in Wilmington,” said Joseph Fitzpatrick, an assistant U.S. attorney in Illinois who is serving as a spokesman for the special counsel in the Biden case.
The FBI searched Biden’s beach house in Rehoboth Beach, Delaware on February 1. Agents did not find any classified documents, but they did take some handwritten notes and other materials from Biden’s time as vice president for review. Like the two previous searches of locations linked to Biden, agents did not obtain a warrant, per CNBC, and the searches were planned and consensual.
How has Biden responded?
Richard Sauber, special counsel to the president, confirmed that the documents were found on November 2 and said the White House counsel’s office notified the National Archives on the same day. The next day, the documents were turned over to the National Archives, which then notified the Justice Department.
Biden said at a press conference in Mexico City on January 10 that he was “surprised” to learn that there were classified documents in his old office, he only learned of their existence when his attorneys notified the White House counsel’s office, and he doesn’t know what’s in the files. He added that he takes “classified documents seriously” and “we’re cooperating fully — cooperating fully — with the review.”
The next day, following the news of additional records being found, Biden was asked by Fox News about storing classified documents in a garage near his car.
“My Corvette’s in a locked garage, so it’s not like they’re sitting out in the street,” Biden said. “But as I said earlier this week, people know I take classified documents and classified materials seriously. I also said we’re cooperating fully and completely with the Justice Department’s review.”
When asked about the issue during a tour of storm damage in California on January 19, Biden told reporters that he’s “fully cooperating and looking forward to getting this resolved quickly.” He added, “I think you’re going to find there’s nothing there. There’s no there there.”
How has the Justice Department responded?
Following the discovery of classified materials in Biden’s office, the Justice Department launched a review of the documents. Attorney General Merrick Garland assigned John R. Lausch Jr., the U.S. Attorney for the Northern District of Illinois, to oversee the process. Lausch is one of only two Trump-nominated U.S. Attorneys who are still serving.
At a press conference on January 12, a day after it was reported that more documents were found in Biden’s home, Garland announced that former U.S. Attorney Robert Hur would serve as special counsel to review the classified documents and how Biden came to possess them. Garland said that Hur will examine “the possible unauthorized removal and retention of classified documents or other records discovered.”
Hur is a former clerk for Chief Justice William Rehnquist and served as the U.S. Attorney for Maryland during the Trump administration. He will have the authority to prosecute if he determines there was criminal activity.
After the press conference, the White House released a statement announcing its cooperation with the special counsel, “We are confident that a thorough review will show that these documents were inadvertently misplaced, and the president and his lawyers acted promptly upon discovery of this mistake,” the statement read.
How has Congress responded?
Republican House Oversight Committee Chairman James Comer has asked the White House, NARA, the DOJ, and Biden’s attorneys to turn over all documents and communications related to the Biden classified documents by January 24, according to the Washington Post.
“NARA instigated a public and unprecedented FBI raid at Mar-a-Lago — former President Trump’s home — to retrieve presidential records. NARA’s inconsistent treatment of recovering classified records held by former President Trump and President Biden raises questions about political bias at the agency,” Comer wrote in a letter to Acting Archivist Debra Steidel Wall.
Comer sent a letter to the White House on January 15 asking for a list of people who may have had access to Biden’s home in Delaware. The White House said it does not keep visitor logs for Biden’s personal residence.
Democratic Senator Mark Warner, chair of the Select Committee on Intelligence, has also requested a briefing on the Biden documents.
How is this different from Trump’s documents scandal?
It appears that both Biden and Trump violated the Presidential Records Act and had in their possession classified records that should have been with the National Archives. But there are some key differences:
• So far, it seems Biden had around than a dozen classified documents, while more than 300 classified materials were removed from Mar-a-Lago.
• While both presidents may have mishandled classified documents, the Trump investigation — which is now being handled by Special Counsel Jack Smith — involves potential obstruction of justice. At this point, it appears Biden is complying fully with investigators.
• As Sauber noted, the National Archives hadn’t requested the initial batcch of documents from Biden. Instead, his team quickly alerted NARA of their existence. In contrast, NARA reportedly spent more than a year trying to retrieve materials from Trump after he left office. They found 184 classified documents, including 25 “top secret” documents, in 15 boxes of materials retrieved from Mar-a-Lago in January 2022. Months later, the Trump team turned over 38 more classified documents in response to a grand-jury subpoena — but the Feds came to believe that that they weren’t complying fully. The Justice Department obtained a warrant to search Mar-a-Lago in August and recovered hundreds more classified documents.
• All we know about the Biden classified documents so far is that they supposedly cover non-nuclear topics related to Ukraine, Iran, and the United Kingdom. Trump reportedly had a plethora of extremely sensitive documents in his possession, including information on a foreign government’s nuclear capabilities and intelligence gathered by secret human sources.
• Vice presidents have the power to declassify documents, but the scope of that power is a murky, and Biden has not claimed that he declassified any of the materials in question. As president, Trump had broad declassification powers, but he’s made dubious claims about how he exercised that right. His allies have claimed he had a “standing order” to declassify anything he removed from the White House, though there is no evidence of this and his lawyers have not pursued this argument in court. At one point, Trump claimed the president can declassify “even by thinking about it,” but that nonsensical argument is largely irrelevant. As the New York Times noted, none of the criminal laws cited by the FBI in obtaining a warrant to search Mar-a-Lago depended on whether the documents contained classified information.
How have Republicans responded?
Unsurprisingly, in public statements, Trump and his allies have ignored the differences between the Mar-a-Lago raid and the discovery of classified papers in Biden’s home and office.
In posts on Truth Social, Trump asked, “When is the FBI going to raid the many homes of Joe Biden, perhaps even the White House?” Then he asserted that Biden’s actions are way worse than his own:
Others asked why Biden’s homes weren’t being raided by the FBI:
Republican representative James Comer, the House Oversight Committee chairman, said the Biden administration has made adhering to the Presidential Records Act “a top priority” and that “we expect the same treatment for President Biden.”
This post has been updated throughout.
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