The Daily - The Presidents and the Classified Documents

Episode Date: January 13, 2023

The Justice Department is scrutinizing how both former President Donald J. Trump and President Biden came to have classified records after they left office.Attorney General Merrick B. Garland appointed a special counsel after the discovery of two batches of classified documents from Mr. Biden’s time as vice president.How are the two cases similar, how are they different and what might that mean for both?Guest: Glenn Thrush, a Washington correspondent for The New York Times.Background reading: Special counsels are looking into both Mr. Biden and Mr. Trump. Here’s how the situations differ.Robert K. Hur has been appointed to oversee the investigation into Mr. Biden’s handling of classified documents. Who is he?For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Sabrina Tavernisi, and this is The Daily. First, it was Donald Trump, and now it's President Biden, who's being investigated on how classified documents ended up in his home. Today, I spoke to my colleague Glenn Thrush on how the two cases are similar and how they are different and what that might mean for both. It's Friday, January 13th. So, Glenn, we find ourselves at this really kind of bizarre moment where two presidents are now under investigation by a special prosecutor for how they've handled classified documents. Donald Trump and Joe Biden. Tell us about this new case involving Biden and how he got here. Well, we were all sitting around on Monday night.

Let's turn now to that breaking news. When, boom, the CBS report hits out of Chicago. CBS News has learned the Department of Justice is reviewing classified Obama-Biden records found at a private office once used by Joe Biden after he was vice president. With the news that the U.S. attorney in Chicago was investigating Joe Biden for having classified documents, this was a real bolt out of the blue. This development comes as the Justice Department is investigating former President Trump's handling of classified documents found at Mar-a-Lago. It really completely scrambled the jets in terms of the folks who covered this.

And as the details of this came out over the next couple of days, we began to realize that this was not a small matter. And Glenn, what did the report say? The report said that lawyers who were shutting down this Biden think tank in Washington, D.C., opened up a locked closet, cracked open a box that seemed to be marked personal, and found approximately 10 classified documents that should not have been there. And Glenn, when did they find the documents? The documents were found on November 2nd, on the threshold of the midterm elections.

And also a couple of weeks before the Justice Department appointed a special prosecutor in the Trump case. And also two months ago, right? I mean, we're learning about this this week, and that was November. That's right. And, you know, they apparently followed the rules once the documents were found. For those folks who followed the Trump case, the way you're supposed to handle this is call the National Archives and tell them that you have this material and then they come over and pick it up. And then oftentimes they'll inform the Justice Department, which has a responsibility for overseeing this stuff, too. And it looks like the Biden folks followed the rules in this particular instance. But it also raised a lot of questions, troubling questions about why we had not heard about this sooner

and why it was that this happened so close to this really consequential election. And so what's the reaction to this news, Glenn? What are people saying? Well, I guess it depends on who you ask. Sometimes people make mistakes. The key is, when you make a mistake, do you own up to it and try to get it right, or do you hide it and do all the stuff that Trump has been doing?

So Joe's team made a mistake. I think folks on the left and supporters of President Biden have emphasized the difference between their behavior and the Trump team's behavior. We learned that Joe Biden, fresh from lecturing us about how Donald Trump was a criminal, himself had unauthorized possession of secret documents. But don't worry. The reaction on the right was to accuse Joe Biden of hypocrisy because he'd slammed Donald Trump

for retaining all the documents at Mar-a-Lago. What is double standard here? Where's the FBI? They should be battering rams knocking down his door. I mean, were they right in his home? No. I mean, this is ridiculous. I mean... So it sounds like right off the bat, there's this effort by Republicans to paint these two things as equivalent, right? Trump keeping classified documents in Mar-a-Lago

and Biden in his private office. So what were you thinking when the news broke? Well, when you look at the behavior of the Biden folks calling up the National Archives, being much more cooperative, it obviously compared very favorably to the actions of President Trump and his team. Trump and his folks resisted famously, infamously,

when they were informed that they had to return material to the archives. Mr. Biden's team seemed to be entirely cooperative. The big questions that were raised early on, however, were much more about chronology. While they voluntarily turned everything over, why were we only learning about it so far into the game? You know, if they had done nothing wrong and behaved entirely according to regulations, why didn't they tell us about it? Right. Okay, so that was Monday. What happened next? What happened next was Tuesday. It's been a long week.

I bet. Tuesday. It's been a long week. I bet. But by the end of Monday, after the story broke, I got some tips that there might be other places where documents were found. Oh, wow. So you were hearing from your sources that there might be. Yeah, we were. I don't think I was the only one. So I spent a good portion of Tuesday chasing it unsuccessfully. And Wednesday rolled around and boom. This is an NBC News special report. Tonight, the controversy over President Biden's handling of classified information is growing. Revelations, a second batch of classified documents

has been discovered. NBC News reported that a second cache of documents had been found. This time in a different location from where the initial documents were found. A second trove. So a pattern, effectively. Yes. Still unclear when these new documents were discovered and if Biden attorneys are still searching for more.

It really did raise a whole bunch of new questions. did raise a whole bunch of new questions. So from Monday to Wednesday, we moved from asking informational questions about how this happened and why it took so long to really questioning the motives of the Biden team. What were the new questions that it raised, this second trove? The second trove raised, first of all, it raised a question about location. We determined pretty early on that this stuff was in Wilmington. Wilmington, Delaware, where Mr. Biden lives. Right. It's not just where Mr. Biden lives. It's where Mr. Biden, during the pandemic,

did a lot of his events from his basement, infamously. So it's the place where he's made all of his major decisions and where he has strategized for most of his political career. It's in a really important place, as important to Mr. Biden as Mar-a-Lago is to President Trump. So in other words, not just an office, but actually his private home. Right. And that, again, sort of changes the narrative and dynamic because one of the criticisms Mr. Trump had drawn from Democrats was that he blurred the line between his work responsibilities and his home, that he sort of personalized the presidency, right? That was a big criticism of him. Well, you know, when it was determined later that Mr. Biden had brought his stuff back to Delaware,

that again, sort of in terms of the narrative of this story, it raised questions as to, well, why was this stuff in his house? Right. And then we're also trying to figure out exactly what's in these documents. And sounds like some of them were briefing memos on foreign governments, but we still don't know the full scope of the classified material that's been recovered from these locations. So then Thursday rolls around. Good morning. So I him a little late. And President Biden speaks off the cuff. He's asked by Ducey of Fox.

Mr. President, classified material. Next year Corvette. What were you thinking? Why the heck would you store classified documents in your house near your Corvette? But as I said earlier this week, people, and by the way, my Corvette's in a locked garage. Okay. So it's not like you're sitting out in the street. But at any rate. And he responds by saying the garage is locked. Meaning? Meaning it's somehow safe. Okay. And, you know, the big question that's been looming over all of this since Monday is whether or not

the attorney general Merrick Garland would appoint a special counsel in the Biden documents case, just as he did in the Trump documents case. Right. You know, the optics of that are really important. If you're investigating one president's activities from an optics perspective, you want to do the same thing with another president. And so as things were moving along, Thursday morning, we all got an email saying, come on over at 115. Merrick Garland is going to make an announcement. And good afternoon. 115 on the dot. I'm here today to announce the appointment of Robert Herr as a special counsel. Garland announces that he's appointing a special counsel to investigate the matter. Robert Herr, the former U.S. attorney in

Maryland, would be taking over the Biden case. I have today notified the designated members of each House of Congress of the appointment. Then he does something that was a little less expected. On the evening of November 4th, 2022, the National... He provides a really detailed chronology on all the events. On November 9th, the FBI commenced an assessment. With one really startling new detail, and that is. On December 20th, President Biden's personal counsel informed Mr. Lausch that additional documents bearing classification. The second batch of documents was actually called into the National Archives by the Biden people on December 20th. Much later than the first one. Six weeks after the first batch, which really raises a whole bunch of new questions as to,

you know, why did it take so long? You would figure that after finding those documents in Washington, they would have scoured every other box to make sure that no similar material was there, but they waited. I am confident that Mr. Herr will carry out his responsibility in an even-handed and urgent manner and in accordance with the highest traditions of this department. Thank you all. Have you ever spoken to the president about this investigation, sir? And now, Biden is in the very same boat as Trump, both under investigation by a DOJ special counsel.

Well, you know, on the surface, they're both being investigated by special counsels. But I think the circumstances of each investigation remains vastly different. We'll be right back. So tell us about the special counsel, Robert Herr. Well, he's really covered the waterfront in his career. He's 49 years old. He served as a prosecutor in Maryland, done a lot of public corruption cases in Maryland. But what he's really best known for

is serving as a Trump-appointed official in the Justice Department during some of the most chaotic times of the administration. He really made his name as the top deputy to Rod Rosenstein, a key Justice Department figure during the Trump administration. And he's also worked other jobs in the building. He is a very known commodity. And, you know, it doesn't hurt that Rob Herr is a registered Republican who was appointed by President Trump. Merrick Garland wants people to understand that this will be an impartial investigation. And what exactly will this special counsel, Robert Herr, be looking into? Like, what exactly is the potential crime here? the potential crime here? We don't know what the crime is, and I think we're just sort of way too early in the inquiry to go there. What they're trying to find out, my understanding, is what

we're trying to find out. How did the documents get there, first and foremost? Who handled them? Was this an oversight? Is it true that none of Mr. Biden's staff or Mr. Biden himself went in there and looked at things. And when you're looking at the broad range of potential criminality or anything that sort of raises flags, you always get to the issue of intent. And again, I'm not insinuating that this is where they're headed, but it is just as a matter of course, investigators try to get into the mindset of the people who are involved in these situations. And why, for instance, would they have waited so long to even look in Biden's garage? There could be completely innocuous answers to this, but that's the kind of broad investigation that

has typically taken place when these sort of things go on. And was the Biden administration under any legal obligation to tell the public about this? No, they weren't. That's not something that's being investigated. In fact, the Department of Justice likes to keep these things under wraps. Now, should they have? Was it their obligation to inform the public that this was going on? You know, I think that's another question. So given all of that, how should we be thinking about the comparison between Biden and Trump here? That's a really good question. On the Mar-a-Lago case, there are a whole different set of circumstances.

President Trump was issued a subpoena and the allegations that have been made are that he didn't comply with the subpoena. We've reported story after story about the behavior of his legal team, signing attestations about documents that later turned out not to be true. So in the Trump case, we have a lot more above the waterline. We know what the potential charges might be based on the search warrant at Mar-a-Lago. They're looking at a potential obstruction of justice charge. They're looking at an Espionage Act violation for mishandling documents. We have none of that information yet in the Biden case, and it seems like they are in the very early stages of trying to figure out exactly what happened.

But do we know whether a cover-up might be part of the Biden inquiry? Oh, this is way too early for that. We don't even know what they might be covering up. Okay, but I have to imagine that the Trump investigation has become a lot harder with these Biden revelations, right? Because even if the two cases as it stands right now are different legally, from the public's perspective, they're pretty similar, right? They both took documents they shouldn't have and put them in their personal homes. And so given all of that, how is this situation going to affect the special counsel's investigation into Trump? Mr. Trump, prosecutors do consider these larger issues of how officials behave, what is considered to be standard and acceptable behavior. And these revelations about President Biden could change the

terrain of this entire debate. And the fact that you now have President Biden, someone who has said repeatedly that he takes classification seriously, as opposed to President Trump, who has insinuated that he can declassify things mentally, changes the field. The question is, does it change things substantively in a legal way, or is it just a superficial political observation? But, you know, ultimately, the Trump case, should it be brought, would have to go before a jury. And these are the kinds of questions jurors ask. Glenn, on the politics, it occurs to me that we're finding out about these Biden documents in the very same week that Republicans are now getting to work with their new House majority. And a majority that they've promised to use to investigate the administration quite a lot. And now this just gets dropped into their laps, right?

This huge new wind in their sails. Sabrina, last week we were talking about how many ballots it was going to take for Kevin McCarthy to become speaker. And now we're talking about how many caches of documents have been found at various places associated with Joe Biden. I mean, I'm having whiplash. It's just as simple as that. And this is the way American politics works in 2023, right? And we move from crisis to crisis, news story to news story. In fact, the only thing that's really working in the Biden team's favor this week is the fact that people might be ready to move on by next week. But for Republicans who have staked out a two-year

pattern of investigations, this just gives them lifeblood. Because a lot of the questions now that they're starting to ask, which they had previously focused on the Hunter Biden case, on social media, these are now questions that a large majority of the American people, regardless of their political orientation, would like answered. So this is an investigation that makes them look more reasonable, and it makes their appeal have a broader base. So in that sense, this is an absolute godsend for Republicans. Glenn, what stands out to you about this story? Like, what do you make of this moment that we're in?

The point to me is an old one, but it's one that keeps recurring. It's about Donald Trump's gravitational field on American politics. It's quite likely that most people would not really care that much if a few classified documents were found in Joe Biden's think tank or garage. You know, it would prompt some Republican investigations. It would be fodder for the right. But as a big issue, it wouldn't really exist. But Donald Trump's actions around Mar-a-Lago, the war that he sort of staked out over what he got to keep and what he had to give back, it's changed everything in politics. So now this issue, which might have been a minor issue in previous presidencies,

in previous eras, is now a big political problem for Joe Biden, thanks to Donald Trump. I just wonder if this sort of changes the entire public perception of Joe Biden. Here's a guy who got elected on positioning himself as sort of a decent, honorable, rule-abiding alternative to Donald Trump. Well, nothing that has been disclosed thus far would deeply damage that. But public perceptions of Biden are very fragile, and his approval ratings are not that great. So does this dynamic where he's been able to take the high road against Donald Trump, where he's been able to portray Donald Trump as sort of the bad president and

he's the good president, will he be able to continue to do that as effectively against someone he might very well face again in a general election in 2024? Glenn, thank you. Thank you, Sabrina. We'll be right back. Here's what else you should know today. Government data released on Thursday showed that inflation slowed for a sixth straight month in December, driven by falling gas prices and cheaper airfares. It was an encouraging sign for the White House and the Federal Reserve that the worst of America's pandemic-induced inflation may be over. The Federal Reserve

raised interest rates seven times last year to control prices. In December, prices rose 6.5% compared to a year ago, which was down from 9.1% in June. Today's episode was produced by Rob Zipko, Rachel Quester, Stella Tan, Alexandra Lee Young, and Rochelle Banja. It was edited by Liz O'Balin, Paige Cowett, and Lisa Chow. Contains original music by Marian Lozano and Dan Powell. And was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landsberg of Wonderly. That's it for The Daily. I'm Sabrina Tavernisi.

We'll see you on Tuesday after the holiday.