Biden documents case marks Garland’s latest test

The discovery of classified documents at President Biden’s old office and Delaware home have thrust Attorney General Merrick Garland back into a situation none of his predecessors have encountered.

Garland has, over the past three months, appointed two special counsels to review the handling of classified documents: One involving the current president, and one involving the former president, both of whom may be on the ballot in 2024.

Garland appointed a special counsel on Thursday to handle the review of the Biden documents, which were found late last year but only disclosed publicly this week. The Justice Department was quickly alerted, the White House said, and the files were returned to the National Archives.

Garland’s tenure has in many ways been defined by his methodical approach to investigations of former President Trump. He has taken fire from both sides of the aisle, at times from Democrats, accusing him of moving too slowly to investigate Trump, and at times from Republicans, who’ve said he appears too focused on the former president and not on issues like crime.

But now the focus is largely on how he is handling a review of Biden and how a small number of classified documents from his time as vice president came to be found at a Washington, D.C., office and Biden’s Delaware residence in recent months.

With the appointment of a special counsel to handle the Biden documents, experts say they believe Garland is taking great pains to keep the department out of the political fray.

“Merrick Garland is very, very careful about trying to avoid even the optics of politics,” former White House press secretary Jen Psaki said Thursday on MSNBC. “So naming a special counsel in this case means he is treating them, at least pursuing to investigate and look into these cases, equally. No president is above the law, right?”

As part of his 2020 campaign, Biden pledged to restore competence in government and independence at the Justice Department after Trump spent four years publicly pressuring his attorney general over certain investigations related to his own conduct.

Garland’s first two years as attorney general have been overshadowed mostly by investigations into Trump, which are politically sensitive given the former president is still essentially the leader of the Republican Party and had long teased a comeback bid before declaring his 2024 candidacy last November.

Attorney General Merrick Garland speaks at a news conference about a jury’s verdict against members of the Oath Keepers in the Jan. 6, 2021, attack on the U.S. Capitol, at the Justice Department in Washington, Wednesday, Nov. 30, 2022. (AP Photo/Patrick Semansky)

Garland appointed a special counsel, Jack Smith, shortly after Trump declared he was running for the White House in order to handle all investigations into the former president. That included a probe over Trump’s handling of sensitive government materials after dozens of classified documents were found at his Mar-a-Lago estate in Florida.

On Thursday, Garland appointed Robert Hur as special counsel to investigate the discovery of classified documents that were potentially mishandled following Biden’s tenure as vice president.

Some legal experts argued that the existence of the special counsel for Trump made appointing one for Biden all but inevitable, even if Garland believes the two cases are different.

“I think he knows as well as anybody knows that no matter what he does, Republicans on the Hill are going to find fault with him,” said Stephen Saltzburg, a law professor at George Washington University and former Justice Department official. “What he also knows is that if he appoints somebody who’s independent to take a look and then write a report, the people who are fair-minded are more likely to believe that the investigation turned up the truth.”

Andrew Weissmann, a New York University law professor who worked on former special counsel Robert Mueller’s team investigating Russian influence in the 2016 election, argued in a Thursday tweet that the appointment of a special counsel for Biden could ultimately make it easier for a special counsel to bring charges against Trump.

He said Hur’s appointment “gives the DOJ the necessary reality and appearance of balance and fairness” should Smith pursue charges against Trump

Some liberals were frustrated by the appointment of a special counsel for Biden, saying it suggests to the public that Biden’s handling of classified materials is on the same level as Trump’s.

“When classified documents outside of government confines there are always questions that need to be answered. But it sure does feel like the attorney general was quick on the draw to make that announcement,” MSNBC host Joy Reid, a longtime liberal commentator, said Thursday.

In Biden’s case, a small number of documents with classified markings were found last November and December from Biden’s time as vice president at an old office he used from 2017-2019, and at his Wilmington home in the garage. Lawyers for Biden immediately alerted the Department of Justice to turn the documents over, the White House said.

Attorney General Merrick Garland speaks during a news conference at the Department of Justice, Thursday, Jan. 12, 2023, in Washington, as John Lausch, the U.S. Attorney in Chicago, looks on. (AP Photo/Manuel Balce Ceneta)

By comparison, federal officials spent months trying to get back hundreds of classified documents Trump had taken down to Florida upon leaving the White House in 2021, with the former president refusing to cooperate. Concern over the volume and types of documents being stored at Mar-a-Lago triggered an FBI search last August.

“Given the deal that was made over Trump’s handling of documents, I think Merrick Garland did exactly the right thing, even though he’s aware the circumstances are different,” Salzburg said, adding that the two respective special counsels may reach different conclusions about Biden’s and Trump’s responsibility in each case.

When faced with questions about prosecuting Trump, Garland has consistently maintained that no American is above the law and that the Justice Department will not be swayed by outside pressure.

But with the man who nominated him to be attorney general now the subject of a DOJ review, Garland and the White House will be under added pressure to maintain the independence they’ve sought since day one of the administration.

White House press secretary Karine Jean-Pierre on Friday repeatedly deflected questions about the documents case to the DOJ or Biden’s lawyers. But when asked what the situation said about Biden’s pledge to restore competence to government, she pointed to his efforts not to meddle in the department’s affairs.

“We said we wanted to restore independence in the DOJ and that’s what you’re seeing,” she said.