Classified documents from Biden’s time as VP discovered in private office

President Biden speaks during a news conference in the East Room of the White House on Jan. 19, 2022, in Washington, D.C. Photo: Mandel Ngan/AFP via Getty Images

The secret documents from Vice President Biden's tenure were found in a private office space and given over to the National Archives in November, according to President Biden's special counsel, who verified the discovery on Monday.

Driving the news:According to special counsel Richard Sauber, the documents were discovered as Biden's private attorneys were packing documents kept in a locked closet at the Penn Biden Center, which Biden intermittently utilized from mid-2017 until the start of his 2020 campaign. According to Sauber, the National Archives and Department of Justice are working together with the White House.

"On the day of this discovery, November 2, 2022, the White House Counsel’s Office notified the National Archives. The Archives took possession of the materials the following morning."

"The discovery of these documents was made by the President’s attorneys, Sauber added in the statement. "The documents were not the subject of any previous request or inquiry by the Archives."

"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."

CBS News first reported the story.

The big picture: Classified documents were similarly found outside the National Archives last summer when the FBI seized boxes of records from former President Trump's Mar-a-Lago estate.

• The Department of Justice is investigating Trump for his handling of classified information, though Trump has claimed that presidents can declassify documents "even by thinking about it."
• It’s unclear if any investigation will be launched based on the discovery of records in the private office Biden used.
• The National Archives and the Department of Justice did not immediately return requests for comment.

What they're saying: "President Biden has stated that taking classified documents from the White House is 'irresponsible,'" House Committee on Oversight and Accountability chair James Comer (R-Ky.) said in a statement.

"Under the Biden Administration, the Department of Justice and National Archives have made compliance with the Presidential Records Act a top priority. We expect the same treatment for President Biden, who has apparently inappropriately maintained classified documents in an insecure setting for several years."

Rep. Byron Donalds (R-Fla.) demanded answers in a CNN interview. "I’m wondering why the vice president of the United States had classified documents outside of the hands of the intelligence community," he said. "And number two, why did it take six years?"

"WHERE is the FBI? WHERE is the dramatic raid?" Rep. Ronny Jackson (R-Texas) tweeted. "We have two systems of justice in this country: one for them and one for us."

Donald Trump Jr. echoed the rhetoric. "When will the FBI’s Hostage Rescue Team storm one of Biden’s many vacation homes bought and paid for somehow by a lifetime of being a humble public servant?" he tweeted.

CBS News first reported on the documents.

At a summit in Mexico City on Monday evening, Biden ignored shouted questions from reporters on the classified documents. Garland, also attending the summit, was seated to the President’s left.

A senior administration official traveling with Biden says the issue won’t be a distraction..

“Nothing has changed in his schedule,” the official said. “He’s focused on the summit and meeting with our closest neighbors.”

The classified materials included some top-secret files with the “sensitive compartmented information” designation, also known as SCI, which is used for highly sensitive information obtained from intelligence sources.

After the discovery, Biden’s lawyers immediately contacted the National Archives and Records Administration, which started looking into the matter, the source said. Biden’s team cooperated with NARA, which later came to view the situation as a mistake due to lack of safeguards for documents, the source said.

In November, NARA sent a referral to the Justice Department to look into the matter, a source with knowledge of the situation told CNN.

The US attorney in Chicago, John Lausch Jr., is investigating. Lausch was one of the rare Trump-era holdovers who wasn’t asked to resign after Biden’s inauguration. He was appointed by Trump in 2017 and unanimously confirmed by the Senate. Illinois’ two Democratic senators said in 2021 that they wanted Lausch to remain at his top post “to conclude sensitive investigations,” though they didn’t reveal what probes he was working on.

Political fallout:

The discovery of the materials come as special counsel Jack Smith is investigating former President Donald Trump for potentially mishandling classified records at his Mar-a-Lago resort in Florida. Federal investigators have recovered at least 325 classified documents from Trump as part of their inquiry.

Republicans are already asking questions of Biden.

“President Biden has been very critical of President Trump mistakenly taking classified documents to the residence or wherever and now it seems he may have done the same,” said GOP Rep. James Comer of Kentucky, who is set to become the House Oversight Chairman. “How ironic.”

Comer pointed out that the National Archives falls under his committee’s jurisdiction for oversight but said when they, while in the minority, sent NARA questions related to former Trump, NARA referred Republicans to the Justice Department.

“Maybe they’ll answer our questions now because it pertains to two presidents,” Comer said, adding he plans to ask the archives for more information later this week.

House Speaker Kevin McCarthy didn’t say whether he believes the new GOP Congress should investigate Biden, but said the reaction to Trump holding onto classified documents has been driven by politics.

“I just think it goes to prove what they tried to do to President Trump overplayed their hand on that,” McCarthy said.

“They’ve been around even longer,” McCarthy said of Biden’s team. “President Trump had never been in office before and had just left, came out. Here’s an individual (who) spent his last 40 years in office.”

McCarthy added: “It just shows that they were trying to be political with President Trump.”

Differences between document discoveries:

The Trump documents saga emerged in a different way than the Biden situation, however.

According to Biden’s attorneys, they turned over the classified materials and notified NARA as soon as they were discovered. With Trump, NARA realized that key records were missing, and NARA officials haggled with Trump’s team over the return of government documents.

Trump eventually gave 15 boxes of materials back to NARA. But federal investigators later came to correctly suspect that he was still holding onto dozens of additional classified files. So, DOJ prosecutors secured a grand jury subpoena and later got a judge’s permission to search Mar-a-Lago, to find the documents.

Ever since the FBI searched Mar-a-Lago in August – a search that uncovered dozens of additional classified files – Trump has promoted wild and unfounded allegations about his predecessors’ supposed mishandling of government records. The news about classified records turning up at Biden’s private office is sure to provide new fodder to Trump, who has already announced his 2024 presidential bid.

On Truth Social, Trump wrote: “When is the FBI going to raid the many homes of Joe Biden, perhaps even the White House? These documents were definitely not declassified.”

Biden was critical of Trump when he saw the photograph taken by the FBI that showed an array of documents found on Trump’s property last summer.

“How that could possibly happen? How one – anyone could be that irresponsible?” Biden said. “And I thought what data was in there that may compromise sources and methods? By that I mean names of people who helped or, et cetera. … totally irresponsible.”

CNN contributor and former Republican Rep. Adam Kinzinger, who served on the House select committee investigating January 6, said Monday that the investigation may blow some of the political headwinds away from Trump.

“The only thing that’s needed right now by the former president is to be able to throw doubt and say, ‘look, this happened, too,’” Kinzinger told Wolf Blitzer on CNN’s “The Situation Room.” “So from a political perspective, this is actually probably pretty bad. Not just for the president, but really for the idea of getting justice through the political system.”

Kinzinger speculated that the investigation into Biden will come down to who on the former vice president’s staff handled the documents and whether holding onto the documents was intentional or an accident.

“There’s going to be nuances,” Kinzinger said. “I’ll tell you, the U.S. Attorney in Chicago is a very fair man, Mr. Lausch, and so I think we can trust his word.”

This story has been updated with additional details.