Key questions and what’s next in the Biden special counsel probe

By Marshall Cohen

President Joe Biden is now facing a special counsel investigation after Obama-era classified files were found at his private office in Washington and his home in Delaware.

Former US attorney Robert Hur will lead the probe into the handling of the documents from when Biden was vice president.

This is a ground-moving moment for the Biden presidency, and a significant setback as well. With the 2024 election cycle approaching, Biden now faces a major investigation, as well as a bevy of Republican congressional inquiries now that the GOP has taken over the US House of Representatives.

Here are some of the most pressing questions:

Why did Garland do this?

As attorney general, Garland has the power to appoint a special counsel if there are “extraordinary circumstances” or if it would be “in the public interest” to bring in an independent prosecutor.

Clearly, a criminal probe that potentially implicates the sitting president would fit the bill.

“The extraordinary circumstances here require the appointment of a special counsel for this matter,” Garland said Thursday. “This appointment underscores for the public the department’s commitment to independence and accountability, and particularly sensitive matters and to making decisions indisputably guided only by the facts and the law.”

Who is the special counsel?

Hur is currently in the private sector, but has had a long career at the Justice Department.

He was appointed by Trump to serve as the US attorney for Maryland, and was unanimously confirmed by the Senate in 2018. During his tenure, he oversaw high-profile corruption cases against Baltimore city officials and police officers, as well as Maryland state lawmakers, according to his official biography.

Before that, he served in a top position in the Trump-era Justice Department, as a senior adviser to then-Deputy Attorney General Rod Rosenstein. He appeared at a Trump White House press conference in July 2017, touting that administration’s efforts to crack down on the notorious MS-13 gang.

Hur previously spent seven years as a lower-level federal prosecutor in the US district of Maryland.

What are the possible crimes?

The order that Garland signed appointing Hur specifically authorized him to investigate the “possible unauthorized removal and retention of classified documents or other records.”

Hur is also permitted to investigate “any matters that arose from the initial investigation” handled by the US attorney in Chicago, and anything that “may arise directly from” his own investigation.

Biden’s team has denied any wrongdoing and predicted that he’ll be cleared of any criminality.

“We have cooperated from the moment we informed the Archives that a small number of documents were found, and we will continue to cooperate,” Richard Sauber, a senior White House lawyer, said in a statement, adding that the documents were “inadvertently misplaced” and not illegally mishandled.

Could Biden be charged?

Simply put, it depends on the facts and the timing.

Justice Department regulations block federal prosecutors from indicting a sitting president. Therefore, even if Hur concludes that Biden broke the law, he can’t charge Biden while he’s in the White House.

Theoretically, Hur could indict Biden in 2025 if his probe somehow drags past the 2024 presidential election, Biden loses the election, and then Hur concludes that Biden broke the law.

The DOJ policy against indicting a sitting president impacted special counsel Robert Mueller. After wrapping up his probe in 2019, Mueller stopped short of charging then-President Donald Trump, despite finding substantial evidence that Trump repeatedly obstructed the Russia investigation.

What about the Trump probe?

The appointment of Hur means there are now two special counsels investigating potential mishandling of classified documents by two presidents. Special counsel Jack Smith has been overseeing the probe into possible mishandling of documents by Trump and his team, as well as their potential obstruction.

The dual investigations, into the two possible 2024 hopefuls, puts the nation in uncharted waters.

And while there are some similarities between the two investigations, there are also key differences. Both investigations are examining how sensitive government materials ended up somewhere they simply weren’t supposed to be. But at this early stage, it appears that Biden’s team was far more cooperative with investigators than Trump’s team has been.

For example, Biden’s lawyers say they notified the National Archives on the same day in November that they found the classified documents at his private office in downtown DC. Archives officials picked up the material one day later without incident.

It was the Archives that alerted Trump to his missing documents — and then Trump spent months haggling over their return. His team then only partially complied with a June subpoena demanding the return of all documents, and his lawyers falsely asserted in a sworn affidavit that all the documents were given back.

“These cases are entirely different,” former FBI Deputy Director Andrew McCabe, a CNN contributor, said Thursday on CNN. “They should proceed where the facts take them. Ultimately, each special counsel will have to make a recommendation to the AG based on the facts and the law.”

The-CNN-Wire
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