Biden’s classified-records headache is Garland’s special-counsel nightmare

The Justice Department reportedly is investigating the discovery of 10 classified documents found in an old private office used by President Biden when he served as vice president. The discovery could not come at a worse time for the Justice Department — or a better time for former President Trump.

While there are significant differences in the number of the documents involved in each case and the reported response of the Biden and Trump teams, the underlying allegation — removing and retaining classified material — is the same. Moreover, there remain questions that are likely to be pursued by the Republican-controlled House of Representatives in the coming weeks. Those questions not only deal with the scope of the alleged violations but the increasingly conflicted and irreconcilable positions of Attorney General Merrick Garland regarding the Biden and Trump investigations.

Biden’s lawyers have said they found the documents just days before the midterm elections and are “cooperating with the National Archives and the Department of Justice regarding the discovery of what appear to be Obama-Biden Administration records.” The White House Counsel’s Office notified the National Archives on Nov. 2 of the discovery as it was closing out a Washington office, the Penn Biden Center for Diplomacy and Global Engagement, that Biden used as part of his relationship with the University of Pennsylvania after he left the vice presidency in 2017.

That academic appointment itself is considered controversial by some Biden critics. Biden was made an honorary professor from 2017 to 2019 and reportedly paid nearly $1 million for a few visits to the school. According to the Philadelphia Inquirer, he was paid $371,159 in 2017 and $540,484 in 2018-2019. He has used the appointment to claim the status of a professor in speeches.

The newly discovered material reportedly includes some top-secret files with the “sensitive compartmented information” designation, also known as TS-SCI, which is used for highly sensitive information obtained from intelligence sources.

There is no accusation of false statements or obstruction in this instance, both of which are being investigated in Trump’s Mar-a-Lago matter. However, the incident further highlights AG Garland’s unintelligible position.

This controversy will again raise prior cases of knowing or negligent removal of classified material by government officials and the relatively light punishment given in even some of the most egregious cases.

After the raid on Mar-a-Lago, experts and pundits went into a frenzy about Trump being given an “orange jumpsuit,” and some insisted that even a misdemeanor conviction should bar him from office. It is not clear if the same view (which I criticized then) will now apply to Biden — but some of those experts have rushed to distinguish the two cases and assure us that there really is no comparison.

NBC and MSNBC legal analyst Joyce Alene White Vance, for example, called it an “apples to oranges” comparison, even though we still do not know the full facts of what was found and whether there may have been other violations.

There indeed are obvious differences in the two cases, but the underlying danger of a misdemeanor charge still remains in both. Presumably, the documents found in Biden’s private office were knowingly removed by someone, and they reportedly contained clear classification markings.

Moreover, questions remain about whether other documents may be at other locations — and that is the problem with Garland’s approach to repeatedly protecting Biden from the appointment of a special counsel.

Notably, Biden himself joined in the condemnation of Trump removing classified material to his private quarters. In a 2022 interview, CBS’s Scott Pelley asked Biden: “When you saw the photograph of the top secret documents laid out on the floor at Mar-a-Lago, what did you think to yourself looking at that image?”

Biden seemed to struggle to control his disgust before replying: “How that could possibly happen, how anyone could be that irresponsible. And I thought what data was in there that may compromise sources and methods.”

The same questions are being asked now about Biden’s own potential “irresponsible” handling of classified material and the true extent of any violations. On Monday, during a state visit to Mexico, Biden declined to answer questions from reporters.

The Biden classified documents matter has been referred to U.S. Attorney John Lausch for investigation. But the discovery will only magnify questions for Garland.

Some of us have criticized Garland for refusing to appoint a special counsel to investigate influence-peddling allegations against Biden’s son, Hunter, despite an overwhelming basis for such an appointment.

In contrast, Garland appointed a special counsel to investigate Trump soon after Trump announced his 2024 presidential candidacy. That again raised questions about Garland’s treatment of Biden, who is actually the president, may also be a presidential candidate in 2024, and may be involved in the underlying allegations against his son.

Now, with this new document discovery, Biden may be accused of the same underlying crime as Trump — yet Garland has elected, once again, not to appoint a special counsel. Instead, he is keeping the Biden matter within Justice Department ranks. While U.S. Attorney Lausch was appointed by Trump and is widely respected, Garland was not willing to keep the Trump case in the hands of a similarly respected Justice Department prosecutor.

For two years, some of us have pushed Garland to adopt a clear, consistent approach with the appointment of a special counsel on the Hunter Biden influence-peddling investigation and other matters. His inexplicable refusal now, regarding this new case, will make a bad situation even worse for the Justice Department — and his inconsistent position has became incomprehensible.

Jonathan Turley is the Shapiro Professor of Public Interest Law at The George Washington University. Follow him on Twitter @JonathanTurley.