CLASSIFIED DOCUMENTSComparing the Special Counsel Investigations of the Biden, Trump Documents

Two weeks ago, Robert Hur, Stanford Law School JD ’01, was appointed special counsel by AG Merrick Garland to investigate President Biden’s possession of documents marked as classified from his service in the Obama administration as vice president. The documents were reportedly discovered by President Biden’s personal attorneys in one of his private homes and an office that he used in Washington.

Stanford Law Professor David Sklansky discusses Hur’s appointment with Sharon Driscoll of the Stanford Law School’s Legal Aggregate, and compares the Biden documents case to that of former president Trump.

Sklansky is the Stanley Morrison Professor of Law and Faculty Co-Director of the Stanford Criminal Justice Center. His most recent book is A Pattern of Violence: How the Law Classifies Crimes and What It Means for Justice (Harvard University Press, 2021).

Sharon Driscoll: How serious is this discovery of documents marked classified at President Biden’s former U Penn office and home?
David Sklansky:It’s really hard to say how serious the discovery is from a legal standpoint without knowing more about the documents and how they ended up where they were discovered. From a political standpoint, it’s never good news for a president when a special counsel is appointed to investigate the president or members of the administration. But it’s unclear whether Biden had any personal involvement or knowledge of these documents, and it’s unclear whether Biden or anyone else acted with the kind of intent or recklessness that could make the mishandling of the documents criminal.

Driscoll: Do you think Garland was justified in moving quickly to appoint a special counsel?
Sklansky: As to whether Attorney General Garland was justified in appointing a special counsel—that’s hard to say, also, without knowing more. Garland took this step on the advice of John Lausch, the Trump-appointed U.S. Attorney in Chicago, after Garland asked Lausch last November to carry out a preliminary assessment of the case. Under DOJ’s rules, a special counsel is supposed to be appointed if there are grounds for a criminal investigation, and if it would create a conflict of interest for the investigation to be handled by the lawyers who usually would handle the case within the Department.