Feb 4, 2024 - Politics & Policy

Biden's team bracing for special counsel's report on classified docs

A close-up of President Biden's face, shown from the side.

Photo: Win McNamee/Getty Images

President Biden's team is concerned that special counsel Robert Hur's investigation into Biden's handling of classified documents will hurt his re-election campaign.

Why it matters: Biden aides don't expect criminal charges in the case, but they believe Hur's report will include embarrassing details — possibly with photos — on how Biden stored documents.

  • In late 2022, Obama-era classified documents were discovered in Biden's garage at his home in Delaware and in a private office he used.
  • Biden aides believe that Donald Trump, Biden's likely foe in November, will try to use Hur's report to create equivalency with the felony charges Trump faces related to his keeping classified documents after his presidency.
  • Biden aides believe Hur's probe is done and that his final report could come any time — even as soon as this week — but the final timing is unclear.

Zoom in: Hur, a former U.S. attorney nominated by Trump in 2017 and a former clerk for conservative Chief Justice William Rehnquist, is required to write a report about the investigation.

  • Last fall, Garland said on "60 Minutes" that he would make public a special counsel's report on Hunter Biden, the president's son, "to the extent permissible under the law" to "explain [the] ... decisions to prosecute or not prosecute, and their strategic decisions along the way."
  • He added: "Usually, the special counsels have testified at the end of their reports, and I expect that that will be the case here."
  • A Justice Department spokesperson told Axios that Garland is committed to releasing as much as possible of all special counsel reports, pointing to previous comments by Garland.

Even if there are no criminal charges, Biden aides expect the report's details to be politically damaging.

  • Biden has defended storing documents from his vice presidency in his garage, saying: "By the way, my Corvette is in a locked garage, so it's not like they're sitting out on the street."
  • Any photos of those storage practices could cause a political storm similar to what happened after the release of photos of Trump storing documents at Mar-a-Lago, including in a bathroom.
  • Trump, who resisted the U.S. government's efforts to retrieve the documents, faces 40 criminal counts in the case including obstruction of justice and willful retention of national defense information.

Zoom out: Garland's appointment of Hur added to the tension between Biden's team and Garland that's been fueled by Garland's appointment of the special counsel investigating Hunter Biden, feelings that Garland was too slow to investigate Trump over Jan. 6, and other frustrations.

  • Anthony Coley, a former senior adviser to Garland, caught the Biden team's attention recently when he wrote that Biden and those in his orbit had no one to blame but themselves for Garland's appointment of a special counsel.
  • Coley said Biden's team wasn't initially transparent about the documents and put Garland in a no-win situation.
  • "Against the backdrop of former President Trump's indictment on charges of willful and deliberate retention of classified documents, the Biden team's drip, drip, drip of information made the discoveries seem even worse," Coley wrote.
  • Other legal experts have argued that Biden's team likely was trying to not speak publicly about an ongoing criminal investigation.

Some in Biden's orbit have unflatteringly compared Garland to former FBI Director James Comey and his handling of the investigation into Hillary Clinton's email server.

  • Comey ultimately cleared Clinton of criminal wrongdoing, but damaged her election campaign against Trump in July 2016 by making a public statement that she had been "extremely careless" in her security protocols.

What they're saying: The White House and a spokesperson for Biden attorney Bob Bauer declined to comment.

Editor's note: In a previous version of this story, a Justice Department spokesperson told Axios that Garland had not committed to releasing Hur's report. After publication, the Justice Department said all special counsel reports would be released as much as possible.

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