Republicans seized on revelations that several classified documents from Joe Biden’s time as vice president were found in his former private office to create cover for former President Donald Trump’s hoarding of secret records.
The disclosures Monday about the material found last fall spun up an immediate political storm at a time when Trump is in increasing legal peril. The new GOP House majority is meanwhile rushing to undermine investigations against him and unleashing a wave of counter investigations against the current president.
But there are clear distinctions between the two cases.
The new controversy so far appears to be on a smaller scale than the more than 100 classified documents – some bearing the highest designations of government secrecy – taken from Trump’s resort at Mar-a-Lago after a court-approved search by FBI agents. And Biden appears to be cooperating with the National Archives and the Justice Department in a way that Trump failed to do and unlike the former president he is not being investigated for possible obstruction of justice.
But Trump, who brands attempts to make him face accountability for his conduct in office and afterward as political victimization, sought to capitalize on Biden’s discomfort over the documents in a post on his Truth Social network.
“When is the FBI going to raid the many homes of Joe Biden, perhaps even the White House? These documents were definitely not declassified,” he wrote.
New House Oversight Chairman James Comer told CNN: “This is (a) further concern that there is a two-tiered justice system.”
New House Speaker Kevin McCarthy also moved quickly to respond to the discovery of the documents in an office used by Biden after he left the vice presidency.
“Oh, really? They just now found them after all these years,” he told CNN. “What has he said about the other president having classified documents?”
Attorney General Merrick Garland has asked the US attorney in Chicago to review the material, some of which bore the marking “sensitive compartmentalized information” – showing that it came from intelligence sources.
Questions Biden must face
Fairness and respect for the law dictate that Biden should answer many of the same questions that Trump is facing, regarding whether he was entitled to the records, why they were not previously turned over, whether they were securely stored and how they ended up in his office in the first place.
Critics will also wonder why Biden didn’t immediately disclose the discovery of less than a dozen documents last fall to the public, given the huge sensitivity of the Justice Department probe of Trump on a similar question. And the president will be sure to face accusations of hypocrisy given his sharp criticisms that Trump did not take the proper steps to secure classified documents at Mar-a-Lago.
Still, even if there are adequate answers to these issues, any distinctions in the severity of the Biden and Trump documents will be obliterated in the political torrent that is already stirring and with conservative media likely to draw false equivalencies between the two cases.
The report offers an immediate opening for Trump as he seeks to dodge culpability for his behavior and claims he’s a victim of persecution to thwart his 2024 campaign. The former president is a master at turning one incident into an entire campaign narrative – as he did with former Democratic nominee Hillary Clinton’s emails in 2016.
And the report will give the new Republican House majority fresh material as it unleashes a multi-front investigative assault against the White House. And while there so far appear to be clear differences in the magnitude of the cases, the report – first carried by CBS – about Biden will inevitably raise political pressure on Special Counsel Jack Smith’s investigation into Trump’s retention of classified material.
Smith is also now reaching even deeper into the ex-president’s inner circle by subpoenaing his former lawyer Rudy Giuliani as part of a federal grand jury probe looking at Trump’s fundraising, among other issues related to the 2020 election.
The Biden document disclosures will also deepen the already intense political headache facing Garland as he contemplates an eventual decision on whether to charge Trump, whose status as an ex-president and an active 2024 candidate carries huge political implications.
Garland insists that investigations will go where the evidence and the law demands as he seeks to stress the independence of the Justice Department — which was perpetually in question when Trump was president. But now, inevitably and however the Biden vice presidential documents issue is resolved, a decision to charge Trump over the classified documents case but not to take the same action against Biden would incite political uproar among conservatives who would be sure to allege double standards.
The former president’s legal team issued a temperate response to the Biden report that sought to broaden openings that could shield their client. One lawyer said that the Biden story was “indicative of a larger problem with trying to keep track of classified information in the offices of the President and the VP. There is an over classification problem, and at the end of an Administration, things get packed up and moved and it’s hard to keep track.”
The lawyer also warned that if Trump were to be charged, his representatives would demand all communications between the National Archives and Biden’s team on the matter.
The Biden discovery
Biden’s attorneys found the documents in a locked closet in a private office in Washington the future president used as a visiting professor with the University of Pennsylvania. The White House Counsel’s office notified the National Archives and officials at the agency took control of the documents the morning after they were found. Biden wasn’t aware the documents were in the office until his personal lawyers reported their existence and remains in the dark of the content of the material, a source familiar with the matter told CNN. Federal office holders are required by law to relinquish official documents and classified documents when their government service ends.
Unlike in Trump’s case, Biden doesn’t appear to have tried to assert ownership of the files, to obstruct their handover or make outlandish claims that he had previously declassified them based on an undisclosed private thought.
Trump is being investigated by Smith to see whether he infringed the Espionage Act by keeping classified material and for the possible obstruction of justice.
Republicans muster for investigative assault on White House
The Biden documents case will intensify the showdown already emerging between the new Republican House majority and the White House.
For two years, Trump has been rocked by blow-after-blow from congressional and criminal probes over his conduct during and after his presidency that have nudged him ever closer to accountability.
But help is on the way.
The new Republican majority in the House is ready to unleash a vast investigative machine apparently designed to discredit and distract from Trump’s alleged transgressions and to wound Biden’s nascent reelection race.
Such an offensive was always coming, given the extent to which the deeply conservative House GOP remains in thrall to the ex-president. But the intensity, scope and financial muscle of the investigations was bolstered by the concessions offered by McCarthy as he caved to right-wing hardliners in order to win his speakership last week. And it represents a fast-expanding challenge for the White House, which has already spent months preparing its defense.
A new House rules package passed on Monday for instance will set up probes into alleged political bias in agencies like the FBI and the Justice Department and what Republicans see as political weaponization of such agencies.
The move cements the GOP’s sharp turn away from the FBI, once seen as one of the most conservative agencies in the US government following Trump’s repeated claims he was illegally targeted by investigations and his failure to enlist the bureau as a weapon to advance his political grievances.
Rigorous scrutiny and oversight are inevitable and desirable as part of the constitutional duty of Congress and responsibility to ensure accountability with taxpayer money. And in the first two years of the Biden administration, there are multiple questions that merit further investigation and over which the public deserves more clarity.
This includes the chaotic management of the withdrawal from Afghanistan in 2021, the way that Covid-19 mitigation funds were spent or the administration’s unwillingness at least until recently to consider the rising numbers of migrants crossing the southern border as a crisis. Proper oversight can avoid the repeat of errors and inform better policy in future.
But as always in Congress, there are questions over when genuine oversight stops and hyper-partisan politically motivated witch hunts begin, especially in the case of key Republicans who have a long record of crossing over the line.
Incoming House Judiciary Chairman Rep Jim Jordan, for instance, was a leading player in a previous investigation by a GOP House into the death of US ambassador to Libya Chris Stevens and three other Americans who were killed by Islamic militants in Benghazi in 2012.
The two-year GOP-run House probe found a perfect storm of bureaucratic inertia, rapidly worsening security in Libya and inadequate resources led up to the killings. But Jordan was not satisfied when the final report did not bear out conservative attacks on the conduct of Hillary Clinton — who was Secretary of State at the time of the deaths.
The Ohio lawmaker released his own far more critical report, along with then Rep. Mike Pompeo, who later became Secretary of State himself. And at the time, McCarthy boasted that the investigation harmed Clinton’s 2016 presidential campaign, apparently revealing partisan motivations behind the probe.
As well as the building storm over classified documents, a key focus of the new GOP House majority will be to investigate the House Select Committee in the previous Democratic-run House that painted a damning picture of Trump’s behavior following the 2020 election and before the Capitol insurrection.
The fact that many of the current members of the House voted to deny certification of Biden’s election victory based on lies about electoral fraud Trump was using to try to steal power underscores why many observers are raising new questions about the partisan nature of Republican investigations.
But after the revelations about documents found in Biden’s office, Republicans know a political gift when they see it.