Biden gets his own docu-drama

As President Joe Biden well knows, political fortunes in Washington can turn on a dime. And nothing does it quite as effectively as the appearance of hypocrisy.

Just days ago, the president was savoring his party’s better-than-expected performance in midterm elections, watching his public approval ratings rise, and touting positive economic signs.

Now, he’s under investigation by a special counsel, and has lost an easy talking point against a potential 2024 rival: former President Donald Trump. 

Revelations about classified documents from President Biden’s time as vice president, found at a former Biden office in Washington and in his Wilmington, Delaware, home, have changed the narrative. Mr. Biden is on the defensive, as newly empowered House Republicans take aim at the latest Biden drama. On Wednesday, a House committee opened a long-planned investigation into the president and his family.

But it’s Attorney General Merrick Garland’s naming of a special counsel Thursday, hours after Biden lawyers told the Department of Justice they had found yet another classified document at his Wilmington house, that has sent Washington into overdrive. 

Even though the known facts around Mr. Biden’s Obama-era documents pale in severity compared with those around former President Trump – who faces a special counsel investigation into numerous boxes of classified materials found at his Florida estate, some at the top-secret level – the optics are nevertheless damaging. 

After the tumultuous Trump presidency, Mr. Biden’s image as a throwback to old-style norms, rooted in competence at the basics of governing, has been undermined. Realistically, Democrats can no longer criticize Mr. Trump for hoarding or mishandling documents as they seek to wrap the GOP brand around the former president’s legal woes. 

“It would be very difficult, given these new circumstances, for Democrats to use the issue of the Mar-a-Lago documents effectively against Trump,” says William Galston, a former senior Clinton administration official, referring to Mr. Trump’s Florida home. “That’s a major consequence.”

Democrats are quick to note that the Trump and Biden cases appear markedly different. In the Trump case, the number of documents involved, based on what’s known so far, is far greater than in the Biden case. More consequentially, in legal terms, the former president and his team resisted efforts by the National Archives to retrieve the classified materials once their existence came to light. 

Then, after the initial batches of documents were collected, the Trump team falsely claimed that all materials had been turned over. In August, after obtaining evidence that there were additional classified documents at Mar-a-Lago, the FBI raided the estate. Mr. Trump and his team also face allegations of possible obstruction. 

Mr. Biden’s lawyers, in contrast, say they immediately reported the discovery of classified documents at the Penn Biden Center, a Washington think tank, to the National Archives. The archives reported the discovery to the Justice Department, and Biden attorneys then searched his two Delaware homes – where a small number of classified documents were discovered in the garage in Wilmington and in an adjacent room.

The Biden White House has insisted from the start that the movement of classified documents from his time as vice president to his private office and home was unintentional. 

“We are confident that a thorough review will show that these documents were inadvertently misplaced, and the president and his lawyers acted promptly upon discovery of this mistake,” White House lawyer Richard Sauber said in a statement Thursday afternoon.

Even if Mr. Sauber’s assertion ultimately proves true, the public fallout has already been fierce and negative – and Mr. Biden himself hasn’t helped. In an appearance before reporters Thursday morning to tout a lowering annual inflation rate, the president took a question about the documents. 

A known car buff, Mr. Biden was asked why he kept classified materials next to his Corvette, which is stored in Wilmington. 

Mr. Biden’s testy response: “My Corvette’s in a locked garage, OK? So it’s not like they’re sitting out on the street.” 

The president had come prepared with a written statement on the document flap, but strayed from the script when his car came up. 

More problematic, Mr. Biden and his team have faced criticism for failing to make public the discovery of classified documents in Washington and Wilmington in a timely fashion. The first set of documents was discovered on Nov. 2 – before the midterm elections. But that information was not revealed to the public until this week. 

To many Americans, the whole situation may blur into eye-rolling toward Washington in general. 

Ryan Goodman, a law professor at New York University, agrees that “in the public mind, these things are all melded together and there’s an equivalence between the two.”

But he disagrees with an emerging conventional wisdom that the new Biden investigation will diminish the possibility of a Trump indictment. 

“The fact that it’s a special counsel will likely insulate the decision in such a way that it is actually more about faithful application of the law,” Professor Goodman says. 

Attorney General Garland’s appointment of a former Trump-era federal prosecutor, Robert Hur, as special counsel on the Biden documents case could help with the optics. Mr. Hur won bipartisan support in 2017 for his nomination as a U.S. attorney and renewed praise Thursday when his appointment by Mr. Garland was announced. Still, no president or ex-president wants a special counsel looking over his shoulder. 

Much remains unknown to the public about the Biden case, such as what exactly the documents pertain to and how they wound up in his private possession. CNN has reported that among the classified documents in Mr. Biden’s former office at the Penn Biden Center, 10 pertained to Ukraine, Iran, and the United Kingdom.

For both the Biden and Trump special counsels, the task at hand is clear.

“What both will be looking for is how the documents got moved, why they got moved, who’s responsible for moving them, and what that person or people knew and intended in the moving of the documents,” says Richard Serafini, a former senior criminal trial attorney at the Department of Justice.