The NPR Politics Podcast - Garland Appoints Special Counsel To Investigate Biden Document Storage

Episode Date: January 12, 2023

After President Biden announced a second set of classified documents had been improperly stored at his Wilmington, Del., residence, Attorney General Merrick Garland said Thursday he was appointing Robert Hur, the former U.S. Attorney for the District of Maryland who now serves in private practice, as a special counsel to examine the issue. This episode: White House correspondent Asma Khalid, national justice correspondent Carrie Johnson, and politics correspondent Susan Davis.This episode was produced by Elena Moore and Casey Morell. It was edited by Casey Morell. Our executive producer is Muthoni Muturi. Research and fact-checking by Devin Speak.Unlock access to this and other bonus content by supporting The NPR Politics Podcast+. Sign up via Apple Podcasts or at plus.npr.org. Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hi, this is Emily from Denver, Colorado. I'm sitting snuggling my three-month-old and enjoying all of the last moments before I return to teaching fourth grade on Monday. This podcast was recorded at 3.06 p.m. Eastern Time on Thursday, January 12th of 2023. Things may have changed by the time you hear it. Okay, here's the show. Enjoy those final baby snuggles. Those are wonderful moments that you don't really appreciate it. At least I didn't really appreciate it at the time, I will say. Hey there, it's the NPR Politics Podcast. I'm Asma Khalid, I cover the White House. I'm Carrie Johnson, I cover the Justice Department. And I'm Susan Davis, I cover politics.

And we begin with a news update. Yesterday on the show, we discussed a set of classified documents that had been discovered in a closet in a private office that President Biden used after he left the vice presidency. But there's news now that a second set of classified documents were found at President Biden's home in Delaware. And this morning, the president was asked about this all by Fox News' Peter Ducey. Classified material, next year Corvette. What were you thinking? Let me, I'm going to get a chance to speak on all this, God willing, soon. 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. The president then did move on to address the issue of the classified documents themselves. But as I said earlier this week,

people know I take classified documents and classified material seriously. I also said we're cooperating fully and completely with the Justice Department's review. As part of that process, my lawyers reviewed other places where documents from my time as vice president were stored, and they finished the review last night. They discovered a small number of documents of classified markings in storage areas and file cabinets in my home and my personal library. These discoveries then led to an announcement today from Attorney General Merrick Garland. Earlier today, I signed an order appointing Robert Herr a special counsel for the matter I've just described. The document authorizes him to investigate whether any person or entity violated the law in connection with this matter. The special counsel will not be subject to the

day-to-day supervision of any official of the department, but he must comply with the regulations, procedures, and policies of the department. Garland then went on to explain why he was taking this step. I strongly believe that the normal processes of this department can handle all investigations with integrity. But under the regulations, the extraordinary circumstances here require the appointment of a special counsel for this matter. This appointment underscores for the public the department's commitment to both independence and accountability in particularly sensitive matters and to making decisions indisputably guided only by the facts and the law. So, Carrie, I want to begin with you.

You just got back from the Justice Department a bit ago. You were there for this announcement. I know we have a lot of questions, but one key one is what happens now? Well, this appointment order has been signed and Special Counsel Rob Herr is going to get to work in the coming days. We don't yet know to what extent he's going to take advantage of the personnel who've already been working on this and the FBI and the Justice Department, or whether he might hire some new people to help him lead and conduct this investigation moving forward. But Rob Herr is very well known within the Justice Department. He understands how the building works, and he'll have a general sense of what he wants to do pretty soon. So can you help us understand what exactly the special counsel will be investigating?

Sure. The paperwork Merrick Garland signed authorizes her to investigate what he called possible unauthorized removal and retention of classified documents and other records, as well as anything else that might turn up in the course of this investigation. That could include possible obstruction of justice or something. But at this point, the White House and Biden says he's fully cooperating with the investigation. Carrie, you said Herr was known within the Justice Department, but probably not very well known to the public. What do you know about him? He's a pretty low-key guy, but he's got a pretty elite resume.

He clerked for a federal appeals court judge. He also clerked for former Chief Justice William Rehnquist. And he was a senior Justice Department official under Deputy Attorney General Rod Rosenstein in the Trump administration. He then went on to serve as the U.S. attorney, the top federal prosecutor in Maryland, where he handled a lot of very sensitive public corruption and national security matters. He's been working in private practice now the last few years, but he's agreed to take on this assignment for DOJ. Rob Herr said in a written statement today, he's going to follow the facts and the law and try to get this done quickly. I do think it's worth pointing out that

Herr was appointed to a job at the DOJ by former President Donald Trump? And I'm curious what you make of that. I mean, do you feel like there was an attempt here by Attorney General Merrick Garland to appear to be, you know but Garland himself has made it very clear that the integrity of the Justice Department has been how he's tried to lead it, that it wouldn't be surprising to try to tap someone that has credibility, certainly within the public's eyes. And I can't think of anyone who has more credibility in the public to investigate a president of one party than someone that might have been appointed by the president of another party. So politically, optically, I do think it tries to at least send a message to the public that this is going to be

fair and above board. All right. Well, let's take a quick break and we'll have more to discuss in just a moment. And we're back. And I do want to touch on how the White House has responded to this all so far. The White House counsel has issued two statements today, broadly saying that they are fully cooperating with the Department of Justice and the National Archives and that they will do that a review will show that these documents were quote, inadvertently misplaced, and that the president and his lawyers acted promptly upon discovering this mistake. You know, as we're taping right now, the White House press briefing is going on. And it doesn't seem like thus far, we've gotten a whole lot more transparent information on what happened. Asma, it does seem like the, at least from a communication standpoint, the White House has

maybe slipped up a bit about this. I think if you saw some of the White House press briefing yesterday, you would have been like, what on earth is going on? I mean, the press secretary was asked multiple times in different ways questions about these documents. And there was one kind of particularly contentious exchange that she had with CBS reporter Ed O'Keefe. And you might recall CBS News is actually the outlet that first broke the story of this original set of classified documents being there. And it was just this awkward exchange where no new information was gleaned. And, you know, one of the things about this White House is they came in touting that they were going to be very transparent, that they were going to give all this information to the public and sort of, I think, presenting that they were going to be more high minded than the previous administration, right, that there was a moral superiority here.

And in moments like this, I think a lot of journalists have been was actually found and if it was found in the garage in President Biden's home in Wilmington, Delaware back in December, then why did the press secretary not transparently address that issue yesterday? I mean, for example, why did the president himself not address that issue earlier this week? You know, there's questions about the context of these documents, what's in them. And I think that there are still a whole bunch of outstanding questions that haven't really been clearly or fully transparently answered yet. I mean, the one thing that the Biden White House does not want to happen here is have an equivalence drawn to the investigation into former President Trump and his handling of classified documents. These are different circumstances, but a similar problem. But your point, I think, is right, Asma. You know, Joe Biden ran certainly as someone who would not make these kind of

mistakes, who took things like national security very seriously, and also as someone who was a creature of government, that he knew what the rules were, that he would abide by the law. And, you know, at best, it just looks sloppy. And at worst, it could be the matter of a criminal investigation. And that is just not a position that this White House wants to be in. And again, if you don't have clear, easy to understand public messaging around the timing, what happened, what's being looked at, it's just going to create all kinds of opportunities for your political critics and opponents to make an issue out of it. And on that point, Sue, about political critics, we've already seen today House Speaker Kevin McCarthy.

He spoke about these documents at his weekly press conference. Couldn't get to the microphone fast enough today. Here's an individual that's been in office for more than 40 years. Here's an individual that sat on 60 Minutes that was so concerned about President Trump's documents locked in behind. And now we find it just as a vice president, keeping it for years out in the open in different locations. I do not think any American believes that justice should not be equal to all. You know, I don't think it's any surprise that Speaker McCarthy is interested in investigating this element of the Biden administration. Republicans are planning to launch any number of investigations into the administration and to the president's family.

But this was a political gift for Republicans, especially Republicans like McCarthy, who are still very much Trump allies, who will very much use this as a deflection point for any criticism of the former president and will now use their subpoena and investigative powers to try to make this as big a political issue as they possibly can. As just a point I think that's worthy of fact check, there's only really so much Congress can do to oversee an ongoing investigation, right? Like they like to say that they're investigating it, but there's still pretty clear lines around what Congress can look into an active federal investigation matter. Well, we'll see what happens. I've already seen one attorney general been held in contempt of Congress back in 2012 with Eric Holder with the Republican House. So I'm not at all clear that those boundaries will be respected by the political operation on Capitol Hill. And I'd be remiss if

I didn't point out that Attorney General Garland came into this job promising to return the building to regular order after the real chaos of the Trump years and his efforts to try to use the Justice Department to overturn the results of the 2020 election. We now have three special counsels ongoing, one into Trump and possible obstruction of justice and mishandling of government secrets for materials found at Mar-a-Lago. That special counsel, Jack Smith, is also looking into Trump's inner circle potentially and responsibility or connections to the January 6th siege on the U.S. Capitol. We've got John Durham, who was appointed in the Trump administration, still working away at a report on his findings with respect to politicization at the Justice

Department, the FBI, and the intelligence community. And now we have a third special counsel, Rob Herr, working on Biden's own document problems. And for somebody who wanted to demonstrate the Justice Department could do any job, including jobs that involve very sensitive political matters, we've now got three ongoing special counsels, and we're only two years into this administration. The DOJ, you know, they're running out of people they can tap for these jobs. Let me just put it that way. A lot going on. I mean, but in some ways, it does seem like these are sensitive areas to look into, but it also allows the DOJ as an institution that really prides itself on being apolitical to prove that it is able

to do multiple investigations on multiple seemingly political fronts at the same time. That's true. You know, these special counsels operate outside day-to-day supervision, but obviously Merrick Garland has an opportunity to ask these people what the heck they're doing and for explanations of that in private. And he, of course, has the opportunity to overrule any step any of these people want to take. So it's a fiction that they're entirely outside the Justice Department apparatus. There is still a senior DOJ leadership that will be notified of any big steps any of these special counsels want to take. Carrie, the thing that I wonder about here, and I think it applies to both Biden and Trump

in these investigations, is that special counsel investigations, especially high profile ones, tend to be pretty deliberative. And in one sense, that's a good thing. Deliberative investigations are probably a good mark of a Justice Department. But politically, this also means it can drag on and on and on and on. I don't get the sense that there's much of a history of speedy, neat conclusions to special counsel investigations. Some of these people have said in public that they want to move swiftly, as swiftly as possible, and that there will be no pause. But can you imagine, can you imagine if we do get to a debate stage where one or both of the people on the stage competing for the 2024 presidential election

is still under special counsel investigation? That would be hugely problematic for the country and for the Justice Department too. All right, let's leave it there for today. We'll have more on this story at NPR.org or on your local NPR member station. I'm Asma Khalid. I cover the White House. I'm Keri Johnson. I cover the Justice Department. And I'm Susan Davis. I cover politics.

And thank you all, as always, for listening to the NPR Politics Podcast.