February 5, 2023

WASHINGTON — The classified documents that were discovered in President Biden’s former office at a Washington think tank included briefing materials on foreign countries from his time as vice president, two people familiar with the situation said Tuesday.

The documents were found and turned over to the National Archives on Nov. 2, but their existence was revealed publicly on Monday, after news outlets reported the story.

The Justice Department is reviewing the discovery to determine how to proceed. According to two people familiar with the matter, the inquiry is aimed at helping Attorney General Merrick B. Garland decide whether to appoint a special counsel, like the one investigating former President Donald J. Trump’s hoarding of sensitive documents and failure to return all of them.

Mr. Biden’s lawyers found the documents in a locked closet, intermingled with personal papers as they were packing up boxes from the Penn Biden Center for Diplomacy and Global Engagement office.

Mr. Biden and his aides had used the office from mid-2017 until the start of the 2020 presidential campaign, and the lawyers were preparing to vacate the space, the White House has said. The discovery was not in response to any prior request from the archives, and there was no indication that Mr. Biden or his team resisted efforts to recover any sensitive documents.

The discovery has presented a political problem for Mr. Biden, aside from any legal issues that arise, from Republicans who said they saw a double standard.

Representative James R. Comer, Republican of Kentucky and the incoming chairman of the Oversight Committee, said the government had moved aggressively to punish Mr. Trump for his possession of classified documents, but not Mr. Biden, who he said had “repeatedly kept classified materials in an insecure location for years” but “never faced a raid.”

“Meanwhile, the F.B.I. conducted a raid on former President Trump’s Mar-a-Lago residence for the same violation,” Mr. Comer said.

Unlike Mr. Trump, who defied months of government requests to return the material stored at Mar-a-Lago, Mr. Biden’s team appears to have acted swiftly and in accordance with the law, immediately summoning officials with the National Archives to retrieve the files. The archives then alerted the Justice Department, according to the White House.

The White House statement said that it “is cooperating” with the National Archives and the Justice Department. It has not explained why Mr. Biden’s team did not disclose the problem on its own, acknowledging what had happened only after it came to public light in a news report. The discovery of the documents came a week before the midterm congressional elections, when the news would have been a high-profile last-minute development.


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Mr. Garland, whose time in office has been defined by his department’s investigations of Mr. Trump’s role in the Jan. 6, 2021, attack on the Capitol and the documents case, assigned the preliminary phase of the inquiry to John R. Lausch Jr., the U.S. attorney in Chicago. The pick was intended to blunt criticism that Mr. Garland was seeking to protect the Democratic president who appointed him.

But the comparison of the Trump documents case with the Biden matter — however stark the differences in the response of the two camps — has put new pressure on Mr. Garland, who decided in November to assign both Trump investigations to a special counsel, Jack Smith, to avoid accusations of a political vendetta against the former president.

Mr. Biden and Mr. Garland appeared together at a state visit to Mexico when news of the documents broke on Monday, but neither had any comment. Mr. Biden is expected to be asked about the matter during a news conference on Tuesday.

Under its procedures, the National Archives notified the Justice Department that classified material had been discovered. The department launched an inquiry aimed at figuring out basic facts about how the documents got into the closet and who had been exposed to them, according to people familiar with the matter.

Mr. Garland then assigned Mr. Lausch to conduct a so-called initial investigation aimed at gathering facts and legal research to inform whether it would be appropriate to appoint a special counsel.

Under the regulation, an initial investigation consists of “such factual inquiry or legal research as the attorney general deems appropriate” to “be conducted in order to better inform the decision” about whether a matter warrants the appointment of a special counsel.

Stephanie Lai contributed reporting.

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