This month, the sudden appearance of Special Counsel Robert Hur caused as much of a stir as Bigfoot suddenly appearing on Pennsylvania Avenue.
Unlike his counterpart, Special Counsel Jack Smith, who has been aggressively prosecuting former president Donald Trump, Hur has virtually disappeared since his appointment to investigate President Joe Biden. Hur surfaced to interview Biden over his possession of classified documents, including some that go back to his time as a U.S. senator.
I have referred to Hur as a “neutron prosecutor” — a special counsel with no possible charge, under Justice Department policy barring the indictment of a sitting president. If that was not enough of a problem, Hur may have growing evidence that accounts offered by the White House over the discovery of the documents are false.
The new evidence could prove transformative, not only for the criminal but the impeachment investigation of the president.
This week, the House Oversight Committee released a new timeline on the discovery of classified documents in various locations associated with Biden. From the outset, many of us flagged problems with the account that had been given by Biden, who insisted that he had no knowledge or involvement in the removal or use of the documents.
The most glaring problem is that, after they were removed at the end of his term as vice president, the documents were repeatedly moved and divided up. Some were found in the Penn Center office used by Biden in Washington, D.C. Others were found in his garage and reportedly in his library.
Biden made clear from the beginning that he expected the investigation to be perfunctory and brief. He publicly declared that he has “no regrets” over his own conduct and told the public that the documents investigation would soon peter out when it determined that “there is no ‘there’ there.”
Now, however, it appears that a critical claim by the White House in the scandal may not only be false, but was knowingly false at the time it was made. The White House and Biden’s counsel have long maintained that, as soon as documents were discovered in the D.C. office, they notified the national archives. Many asked why they did not call the FBI, but the White House has at least maintained that, unlike Trump, they took immediate action to notify authorities.
However, it now appears that this was not true. One of the closest aides to Biden and a close friend to Hunter Biden is Annie Tomasini. She referred to Hunter as her “brother” and signed off messages with “LY” or “love you.”
Tomasini was once a senior aide to Joe Biden and, according to the Oversight Committee, inspected the classified material on March 18, 2021, two months after Biden took office — nearly 20 months before they were said to be found by the Biden team.
The committee now alleges that the White House “omitted months of communications, planning, and coordinating among multiple White House officials, [Kathy] Chung, Penn Biden Center employees, and President Biden’s personal attorneys to retrieve the boxes containing classified materials. The timeline also omitted multiple visits from at least five White House employees, including Dana Remus, Anthony Bernal, Ashley Williams, Annie Tomasini, and an unknown staffer.”
If true, the evidence demolishes the timeline long maintained by the Biden team. That could have an immediate impact on both the criminal and impeachment investigations.
The timeline has been a critical distinction drawn by the White House in distinguishing this matter from the Trump indictment, in which Smith charged the former president with 37 counts, including retaining classified information, obstructing justice and making false statements, and other charges.
Biden insisted that he was entirely “surprised” by the discovery of the documents in November 2022. He echoed the narrative of both his lawyers and the media at large: “And they did what they should have done,” he said. “They immediately called the Archives — immediately called the Archives, turned them over to the Archives, and I was briefed about this discovery.”
In reality, Biden’s counsel and associates conducted repeated searches and declared repeatedly that no further classified documents were found. That was repeatedly found to be untrue.
Moreover, the concern is that Biden’s lawyers, in the course of these private searches, may have consolidated material and contaminated the scene by the time FBI agents conducted their searches. This includes changing how documents were originally stored and whether classified markings were visible to anyone working around the Biden home or garage.
Now it appears that the discovery had actually been made months earlier. The timeline would now more closely mirror Trump’s timeline in the knowing retention of classified material, the failure to turn over all of the classified material despite assurances from counsel, and alleged false accounts about the document’s discovery.
It is not clear what Hur can do if he finds either from witnesses or forensic testing (including perhaps fingerprints on the documents) that President Biden lied.
I have long disagreed with the policy that the Justice Department has long held, that prosecutors should not indict a sitting president. Were he to seek an indictment, Hur would have to ask for reconsideration of the policy based on a decades-old memo issued by the Office of Legal Counsel under President Bill Clinton, who at the time faced calls for an indictment for perjury.
The DOJ policy will also put pressure on the House in its ongoing impeachment inquiry. In my recent testimony at the first Biden impeachment inquiry hearing, I mapped out four possible articles of impeachment. They included obstruction and abuse of power.
If this new timeline is accurate, the question is whether Biden knew that the account being put forward by his staff and counsel was false. It also raises the question of whether the president knowingly possessed classified documents and lied about their removal, use, and discovery. Finally, if Biden repeated his public denials to Hur, there could be added allegations of false statements to federal investigators, another commonly-charged federal crime.
We still have to see if there is evidence to support such crimes, but what is clear is that the past narrative may no longer suffice.
In his press conference announcing the criminal charges against Trump, Smith declared, “We have one set of laws in this country, and they apply to everyone….Nothing more, nothing less.”
The question for Hur is whether they can also apply to a sitting president. Likewise, if these allegations are true and Biden knowingly committed these crimes, the question for Congress could be whether he should remain as president.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.