Heather Cox Richardson

After news broke yesterday that President Joe Biden’s lawyers had found a second batch of documents in his home in Wilmington, Delaware, Attorney General Merrick Garland today appointed Robert Hur as special counsel to investigate Biden’s handling of classified documents. After law school, Hur clerked for Chief Justice William Rehnquist and then served as special assistant to Christopher Wray—then an assistant attorney general, now FBI director—before being appointed by former president Trump as the U.S. attorney in Maryland. Since he left office in February 2021, he has been in private practice.

Accepting the post, Hur said: “I will conduct the assigned investigation with fair, impartial, and dispassionate judgment. I intend to follow the facts swiftly and thoroughly, without fear or favor, and will honor the trust placed in me to perform this service.”

The appointment of a special counsel seemed inevitable considering what Garland called “extraordinary circumstances”—likely a reference to the fact that former president Trump is being criminally investigated for his own handling of documents marked classified—and it serves to reinforce the idea that the Department of Justice treats everyone the same. This is a good thing.

But it presents a problem for MAGA Republicans. Unable to attack Biden for having documents marked classified in his possession without also faulting Trump, Republicans have tried to suggest that Biden was being treated differently than Trump is. The appointment of a special counsel undermines that. It also takes away from House Republicans the publicity they could get by investigating the issue themselves. House Speaker Kevin McCarthy said this morning that he did not “think there needs to be a special prosecutor,” and that Congress should conduct its own investigation.

This evening, Republicans appear to have settled on the talking point that Hur is tainted by his time at the Department of Justice under Wray—although Wray was appointed to the FBI directorship by Trump—and that his appointment is further evidence of the “political weaponization” of the FBI and the Justice Department.

(Just to be clear: people writing about these cases keep referring to “documents marked classified” rather than “classified documents” because classification status can change, as Trump argued when he said he had declassified the materials found in his possession despite their markings. It’s awkward phrasing, I know, but it marks an important distinction.)

So far, anyway, Biden’s possession of documents marked classified appears very different from Trump’s. Biden’s team offered up to the National Archives and Records Administration (NARA) the information that Biden had documents in his possession, has apparently been zealous about searching for them, and is apparently cooperating with the Justice Department.

Here’s the story Garland laid out today: On November 2, Biden’s lawyers found a batch of documents from the time of the Obama-Biden administration when they were cleaning out Biden’s office at the Penn Biden Center for Diplomacy and Global Engagement, the Washington, D.C., think tank where Biden worked after his time as vice president. They immediately contacted NARA, which took possession of the documents the next morning. On November 4, NARA’s inspector general contacted the Justice Department to notify it of the document exchange, and on November 9 the FBI began to assess whether Biden had illegally mishandled classified information.

According to journalist Matthew Miller, classified documents often get taken from government facilities by accident. Those errors are reported, the documents recovered, and a damage assessment made to determine whether further action needs to be taken, all of which took place here.

On November 14, Garland assigned U.S. Attorney John Lausch, a Trump appointee, to consider whether Garland should appoint a special counsel. Meanwhile, Biden’s team had continued to search for more documents, and on December 20, Biden’s lawyer told Lausch they had found more documents with classification markings at Biden’s Wilmington home. On January 5, Lausch told Garland he thought it was a good idea to appoint a special counsel.

Finally, on January 12, Biden’s lawyer told Lausch that Biden’s lawyers had found one more document, apparently in his personal library, but that a thorough review had turned up nothing else. This afternoon, the White House counsel said: “We have cooperated closely with the Justice Department throughout its review, and we will continue that cooperation with the Special Counsel.”

While there is still a great deal we don’t know about either case, there are obvious and key differences between Biden’s and Trump’s handling of documents.

In Trump’s case, NARA repeatedly asked him simply to return the documents it knew he had. He refused for a year, then let NARA staff recover 15 boxes that included documents marked classified, withholding others. After a subpoena, his lawyers turned over more documents and signed an affidavit saying that was all of them. But of course it wasn’t: the FBI’s August search of Mar-a-Lago recovered still more documents marked classified. Even now, none of Trump’s lawyers will certify that they have turned over all the documents they are required to.

Trump is apparently being investigated for obstruction and for violations of the Espionage Act, which makes it a crime to withhold documents from a government official authorized to take them.

On his social media network today, Trump wrote: “Merrick Garland has to immediately end Special Counsel investigation into anything related to me because I did everything right, and appoint a Special Counsel to investigate Joe Biden who hates Biden as much as Jack Smith hates me.” In a different post, he called Smith an “unfair savage.”

Garland’s appointment of Special Counsel Jack Smith came only after Trump declared he was running for president in 2024, an announcement Trump likely made because he thought it would shield him from potential indictments. But news is coming daily that Smith’s subpoenas have been far ranging and widely spread, and that those who have testified before the grand jury found the questioning “intense.”

Meanwhile, arguments began today in the trial of five Proud Boys for their actions associated with the events of January 6, 2021. This is the third trial for seditious conspiracy associated with those events. Nine indicted Oath Keepers had to be broken into two groups because there was no courtroom in Washington, D.C., big enough for all of them. In the first Oath Keepers trial, a jury found five of the defendants guilty of various crimes, and two of them guilty of seditious conspiracy. The second Oath Keepers trial is going on right now.

The Proud Boys defendants are charged with a variety of charges, including seditious conspiracy, conspiracy to obstruct an official proceeding, obstruction of an official proceeding, and conspiracy to prevent federal officers from performing their duties.

Roger Parloff of Lawfare, a legal correspondent who is covering the January 6 cases closely, writes that this trial “could well be the most important and informative of all.” The Justice Department today argued that the Proud Boys led the attack on the Capitol, while defense attorneys in turn argued that their clients were being used as “scapegoats” for Trump. “He is the one who unleashed that mob at the Capitol on January 6,” the lawyer for Proud Boys leader Enrique Tarrio said.