Biden ‘surprised’ by classified documents as Hill demands more information

President Joe Biden said Tuesday he was surprised to learn that classified documents were taken to his personal office after he served as vice president and does not know what is in the records, as Democratic and Republican leaders on Capitol Hill call for more information about a discovery that has spurred a review by the Justice Department.

The classified documents, about 10 in total, were found at the Penn Biden Center for Diplomacy and Global Engagement, an institute in downtown Washington that Biden started after leaving the White House in 2017. Biden’s personal lawyers found the documents on Nov. 2 and immediately turned them over to the National Archives and Records Administration (NARA). The White House on Monday confirmed it was cooperating with the Justice Department.

“I was briefed about this discovery and surprised to learn that there are any government records that were taken there to that office,” Biden said at a news conference in Mexico City on Tuesday evening. “But I don’t know what’s in the documents. My lawyers have not suggested I ask what documents they were. I’ve turned over the boxes - they’ve turned over the boxes to the Archives. And we’re cooperating fully - cooperating fully with the review, which I hope will be finished soon, and there will be more detail at that time.”

Rep. James Comer (R-Ky.), chairman of the House Oversight Committee, on Tuesday asked the White House and the National Archives to produce by Jan. 24 all documents and communications between NARA, the White House, the Department of Justice and Biden’s attorneys related to the classified documents while raising concerns about potential political bias at the National Archives.

“NARA instigated a public and unprecedented FBI raid at Mar-a-Lago - former President Trump’s home - to retrieve presidential records. NARA’s inconsistent treatment of recovering classified records held by former President Trump and President Biden raises questions about political bias at the agency,” Comer wrote in a letter to Debra Steidel Wall, the acting archivist.

In addition, Sen. Mark R. Warner (D-Va.), the chair of the Select Committee on Intelligence, asked for a briefing on the Biden documents while renewing a request for one on the classified documents found at Mar-a-Lago, which is at the center of a Justice Department criminal inquiry.

“Our system of classification exists in order to protect our most important national security secrets, and we expect to be briefed on what happened both at Mar-a-Lago and the Biden office as part of our constitutional oversight obligations,” Warner said in a statement.

Biden’s files were mixed in with other personal documents, including documents related to the planning of the funeral of Beau Biden, the son of the president who died in 2015, according to a person familiar with the inquiry, who like some others spoke on the condition of anonymity because they were not authorized to speak publicly.

At his news conference in Mexico City, Biden provided details on how the documents were found, saying his lawyers were clearing out his office at the Penn Biden Center and discovered the documents in a box and in what he called “a locked cabinet, or at least a closet.”

“And as soon as they did, they realized there were several classified documents in that box,” he said. “And they did what they should have done. They immediately call the Archives, turn them over to the Archives.”

Richard Sauber, a special counsel to Biden, said in a statement Monday that the White House was cooperating with the Justice Department’s inquiry and noted that Biden’s lawyers quickly handed over the documents to the National Archives, which handles presidential records, upon finding them.

“Since that discovery, the President’s personal attorneys have cooperated with the Archives and the Department of Justice in a process to ensure that any Obama-Biden Administration records are appropriately in the possession of the Archives,” Sauber said.

There are key differences between the Justice Department’s inquiry into the review of the Biden documents and the agency’s ongoing criminal investigation into former Trump’s possible mishandling of classified documents. The FBI recovered more than 300 classified documents from Mar-a-Lago last year, according to government court filings.

In addition to the discrepancy in volume, the classified materials were voluntarily returned to the National Archives by Biden, whereas Trump repeatedly refused to turn over materials, followed by a false assurance from his lawyers that he had returned all classified information in his possession.

[House Republicans create committee to investigate the government]

The nature of the documents is also varied, according to a person familiar with both inquiries. The Biden records were designated “sensitive compartmented information,” or SCI, while the materials recovered from Trump included documents designated as SCI and “Special Access Programs,” or SAP - a category limited to a very small group of top military and intelligence officials. One document retrieved from Mar-a-Lago described a foreign government’s military defenses, including its nuclear capabilities, The Washington Post previously reported.

“Some SCI programs have hundreds and thousands of people who have access, but SAP programs are much more limited,” the person familiar with the investigations said. “I don’t want to diminish that some is SCI but it’s far more noteworthy that Trump’s materials contained SCI and SAP programs.”

Although the documents were discovered two months ago, it wasn’t until Monday that the White House publicly acknowledged that they had found classified documents and turned them over to the Archives.

“This is an ongoing process under review by DOJ, so we are going to be limited in what we can say at this time,” said Ian Sams, a senior adviser to the White House Counsel’s Office, said when asked about the delay. “But we are committed to doing this the right way, and we will provide further details when and as appropriate.”

However, White House officials have not addressed exactly how the classified documents ended up in Biden’s personal office or whether additional searches have been conducted to ensure there is no additional classified material in Biden’s possession.

Attorney General Merrick Garland, who traveled to Mexico with Biden, tapped U.S. Attorney for the Northern District of Illinois John R. Lausch Jr., who was nominated by Trump, to oversee the review of the Biden documents, according to two people familiar with the matter, one of whom said the FBI is also taking part in the review.

Federal regulations detail steps that Garland can take if he believes a particular case may warrant the appointment of a special counsel

According to the regulations, he can direct that an initial investigation -- such as the one that Lausch is heading -- be taken to determine whether he should appoint a special counsel or if it should be treated as a standard Justice Department investigation. Depending on what this initial investigation yields, Garland could decide to appoint a special counsel.

Spokespeople for the Justice Department, the FBI and Lausch declined to comment.

The documents were found at the Penn Biden Center in early November, not long before Attorney General Merrick Garland tapped a special counsel, Jack Smith, to lead the agency’s criminal investigation into Trump’s possible mishandling of hundreds of classified documents that were taken to Mar-a-Lago after his presidency ended. With regard to Trump, however, investigators are also looking at possible obstruction of justice or destruction of records in addition to the possible mishandling of government secrets. No such allegation has been leveled in the Biden matter, though it is at an earlier stage.

In a September interview, Biden called Trump’s handling of classified documents “totally irresponsible,” asking, “How that could possibly happen?”

Republicans have made the Mar-a-Lago search central to their calls for investigating or overhauling the Justice Department and pointed to the Biden documents as further evidence of alleged political bias in its processes. GOP lawmakers and potential candidates to challenge Biden for the presidency all alleged a double standard in the government and the media’s handling of Trump and Biden’s situations.

“When is the FBI going to raid the many houses of Joe Biden, perhaps even the White House?” former president Donald Trump wrote Monday night on Truth Social, the social media platform he started. “These documents were definitely not declassified.”

The papers were transferred at a time when Biden was transitioning out of political life and, for the first time in decades, establishing new personal offices at the end of a long political career. He signed lucrative contracts to give speeches around the country and sell a memoir, and he forged relationships with the University of Delaware and the University of Pennsylvania.

Biden opened the Penn Biden Center in February 2018 as a think tank for the University of Pennsylvania in Washington. Many of Biden’s top aides served in leadership positions at the center, including now-Secretary of State Tony Blinken, and Steve Ricchetti, who now serves as a senior adviser to Biden in the White House.

Biden had previously donated a large trove to the University of Delaware that contained materials from his 36-year career as a U.S. senator. That collection, which filled 1,875 boxes and included 415 gigabytes of electronic records, arrived in 2012 but the university says they won’t be made public until “two years after [Biden] retires from public life.”

Peter Bothum, a spokesman for the University of Delaware, said Biden only donated papers from his 36-year tenure in the Senate and that the university is not in possession of any papers from his years as vice president.

The records of a vice president are governed by the Presidential Records Act of 1978, and maintained by the National Archives. All materials created or received by the vice president or others in the offices must be turned over to the National Archives, and are treated in the same manner as presidential records.

There’s not typically a repository for vice-presidential papers, with those records often being found at the official presidential libraries from that administration or by making requests to the National Archives.

“There’s not really free-standing vice-presidential libraries,” said Joel Goldstein, a law professor at St. Louis University who has done extensive research on the vice presidency.

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The Washington Post’s Hannah Knowles, Devlin Barrett, Perry Stein and Shane Harris contributed reporting.