The latest development in the Justice Department’s classified documents probe of President Biden came in Rehoboth Beach, Delaware, on Wednesday: FBI agents searched the president’s beach house as part of their investigation into how sensitive documents came to be found at Biden’s personal office in Washington and home in Wilmington.
No classified documents were found during the search, Bob Bauer, the president’s personal lawyer, said in a statement. Bauer also said the FBI took some handwritten notes from Biden’s days as vice president, and some additional materials to review, like agents did during a search of Biden’s Wilmington home in January.
The search is reminiscent of the FBI raid on Mar-a-Lago, former President Donald Trump’s Florida home, but the two are vastly different. According to Bauer, the search was planned, and was conducted with Biden’s “full support and cooperation.” That aligns with reporting that a warrant was not needed for the FBI to do their work. In Trump’s case, the FBI did their work without his cooperation — and with a warrant.
The latest developments in Biden’s case fit the bigger picture of a White House that has been cooperating with the Justice Department from the start, and one that’s tried to avoid the perception that Biden is unduly influencing the investigation. In part to maintain an air of distance, the Biden inquiry is now being led by Robert Hur, a special counsel whom Attorney General Merrick Garland appointed in January but who officially began work Wednesday.
That means two special counsels are running parallel but separate investigations into a current and a former president. Garland appointed special counsel Jack Smith to investigate whether Trump broke laws by mishandling classified materials (the FBI recovered hundreds of documents marked as classified from Mar-a-Lago) and obstructed justice by not cooperating with the investigation.
Whether either leader faces any legal repercussions for advertently or inadvertently holding on to classified documents remains to be seen. Trump, as a private citizen, could be charged for inappropriately handling documents related to national defense, and for potentially impeding the FBI’s investigation. Biden may have run afoul of the Presidential Records Act, but there’s not really a punishment for that, given that he also handed over the material. So far, the growing focus on Biden’s documents hasn’t hurt him politically, and doesn’t look likely to. As campaigning for the 2024 election begins, however, that could always change.
A brief recap of the classified documents saga
Trump and Biden aren’t the only elected officials who had classified documents at home. Representatives for former vice president (and possible 2024 presidential candidate) Mike Pence told the National Archives, the agency in charge of storing classified records once a presidency ends, that a lawyer had found “a small number of documents bearing classified markings” at Pence’s Indiana home in January. The National Archives then contacted the FBI, which worked with Pence’s legal team to hand over the documents.
Those documents were apparently not stored in a secure area but had been taped up in boxes during the former vice president’s move back to Indiana. Once they were discovered, the documents were moved to a secure place in Pence’s house until the FBI picked them up, according to CNN. Pence, as a private citizen who cooperated with officials, is not under a formal investigation, but has said he would cooperate should any be launched.
Biden’s document saga started when a batch of materials with classified markings was discovered at Biden’s DC think tank and office, the Penn Biden Center, on November 2, less than a week before the midterm elections. All 10 documents were from Biden’s time as vice president. The president’s lawyers told the White House Counsel’s office, which informed the National Archives, which collected them the next day. According to CBS News, the FBI then searched the offices in mid-November. None of this was made public until January.
Biden’s team also searched other locations for more potential documents later in December, and a “small number” of additional records were found in Biden’s Wilmington home, including a storage space in the garage. The FBI did its search of that home on January 20, and the White House announced it the next day. About six items were found and taken by the FBI, along with some other handwritten notes.
The investigation into Trump began, as my colleague Andrew Prokop has previously explained, when the National Archives discovered it was missing some sensitive information. After requesting the files from Trump, some were returned; others weren’t. That led to a subpoena (that seems to have been disregarded), the warrant, raid, and ultimately, Smith’s inquiry. At least 300 classified documents were recovered from Mar-a-Lago.
The investigations haven’t made much of an impact on the American people
Because both Biden and Pence have discovered classified documents, and because of the high-profile investigations now going on, the National Archives has formally asked former presidents and vice presidents to check their records for any classified material or records from their time in office.
The National Archives is in charge of storing those materials after an administration ends, in accordance with the Presidential Records Act — a law that applies to the last six presidential administrations since Ronald Reagan’s presidency. The law does not apply to Jimmy Carter, who was president before Reagan.
These requests, the nature of classification (advocates for greater government transparency have long argued that the federal government tends to overclassify materials), and apparent insularity of these legal issues to the Beltway all seem to be contributing to the way the American people are viewing these investigations.
Still, Republicans in Congress and conservative media have seized on the slow trickle of developments in Biden’s document case to try to nullify some of the scrutiny surrounding Trump’s investigation, by downplaying the severity of Trump’s case, falsely equating the two to show a double standard, or trying to create pretext for eventual congressional investigations. Rep. James Comer (R-KY), the chair of the House Oversight Committee, has already targeted the Penn Biden Center for investigation, and used the searches of Biden’s home as reasons to ask for records of any visitors or guests to those places. (Some congressional Democrats are also demanding more information on Biden’s classified documents, though not to attack the president politically.)
Though recent polling by CBS News, CNN, and NBC News show that Americans say they are concerned with the discovery of these Biden documents, the president’s overall approval rating has hardly changed. Views of Trump’s response to investigations remain negative, according to the same surveys.
Quinnipiac polling shows a similar landscape: Large majorities think Biden mishandled documents and think the issue is a serious one to investigate, but don’t think Biden should be criminally responsible for it. “Roughly two-thirds of Americans are aware of and troubled by the misplaced classified documents found in President Biden’s home and private office. But is it a criminal case? No,” Quinnipiac pollster Tim Malloy said in that poll release.
The polling suggests Americans also see differences between Biden’s case and Trump’s, and Biden’s cooperation with investigators. And, unsurprisingly, the answer to questions about how Trump and Biden have behaved in response to these probes changes depending on whether you ask Republicans or Democrats about each man.
Essentially, though the discoveries raise serious questions about security and presidents’ care with secrets, neither seems to be changing the way Americans view either Trump or Biden — at least for now.