AG Merrick Garland Is ‘Pulling A Comey’, Appeasing Republican Bad Faith In Classified Documents Investigations

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For the simple-minded MAGAt crowd living in the epistemic closure of the “conservative misinformation feedback loop” media bubble, here is a reminder from your younger days, from Sesame Street.

Keep this little ditty in mind while reading this AP analysis, A side-by-side look at the Trump, Biden classified documents:

The revelation that classified materials were discovered at think tank offices formerly used by President Joe Biden, as well as at his Delaware home, has prompted questions on how the circumstances compare with the seizure last year of hundreds of documents marked as classified from Mar-a-Lago, the Florida residence of former President Donald Trump.

Attorney General Merrick Garland on Thursday appointed a special counsel to investigate the matter.

A side-by-side look at the similarities and differences between the two situations:

HOW MANY CLASSIFIED DOCUMENTS ARE WE TALKING ABOUT?

BIDEN: It’s unclear precisely how many classified materials have been obtained from Biden’s office and home. Richard Sauber, special counsel to the president, said Monday that “a small number of documents with classified markings” were discovered on Nov. 2, 2022, in a locked closet at the Penn Biden Center for Diplomacy and Global Engagement, a think tank in Washington, as Biden’s personal attorneys were clearing out the offices.

Biden kept an office at the Penn Center after he left the vice presidency in 2017 until shortly before he launched his 2020 presidential campaign. It was affiliated with the University of Pennsylvania and continued to operate independently of the Biden administration.

On Thursday, Sauber said a second batch of documents with classified markings — a “small number,” he said — had been found in a storage space in Biden’s garage near Wilmington, Delaware, with one document being located in Biden’s personal library in his home. On Saturday, Sauber said that a total of six pages of classified documents were found earlier in the week during a search at Biden’s home and were handed over to Justice Department officials.

TRUMP: Roughly 300 documents with classification markings — including some at the top secret level — have been recovered from Trump since he left office in January 2021.

In January 2022, the National Archives and Records Administration retrieved 15 boxes of documents, telling Justice Department officials they contained “a lot” of classified material. In August, FBI agents took about 33 boxes and containers of 11,000 documents from Mar-a-Lago, including roughly 100 with classification markings found in a storage room and an office.

HOW QUICKLY WERE THE CLASSIFIED DOCUMENTS TURNED OVER?

BIDEN: After the materials were discovered at the think tank, Biden’s personal attorneys immediately alerted the White House counsel’s office, which notified NARA, which took custody of the documents the next day, Sauber said.

“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,” Sauber said in a statement.

Part of that cooperation, Sauber said this week, included Biden’s personal lawyers examining other locations where records might have been shipped after Biden left the vice presidency in 2017. That search concluded Wednesday night, Biden told reporters at the White House on Thursday, though he did not say when the second batch of documents was found.

But Sauber revealed on Saturday that he traveled to Biden’s home near Wilmington on Thursday and retrieved a total of six pages of classified documents.

He made the trip after Biden’s personal lawyers discovered one document with a classified marking consisting of one page in a room adjacent to the garage the previous evening. The president’s personal attorneys, who do not have active security clearances, suspended their search after coming upon the document.

Sauber, who does have a security clearance, subsequently found the additional classified pages.

Sauber said the Justice Department was “immediately notified” after the documents were found at Biden’s home and that department lawyers took custody of the records.

TRUMP: A Trump representative told NARA in December 2021 that presidential records had been found at Mar-a-Lago, nearly a year after Trump left office. Fifteen boxes of records containing some classified material were transferred from Mar-Lago to NARA in January.

A few months later, investigators from the Justice Department and FBI visited Mar-a-Lago to get more information about classified materials taken to Florida. Federal officials also served a subpoena for some documents believed to be at the estate.

In August 2022, FBI agents conducting a search retrieved 33 boxes from Mar-a-Lago. The search came after lawyers for Trump provided a sworn certification that all government records had been returned.

COULD EITHER PRESIDENT FACE CHARGES RELATED TO THE DISCOVERY OF THE DOCUMENTS?

BIDEN: Despite the discovery of classified materials, there is no indication Biden himself was aware of the existence of the records before they were turned over.

The administration has also said that the records were turned over quickly, without any intent to conceal. That’s important because the Justice Department historically looks for willfulness, or an intent to mishandle government secrets, in deciding whether to bring criminal charges.

But even if the Justice Department were to find the case prosecutable on the evidence, the Justice Department’s Office of Legal Counsel has concluded that a president is immune from prosecution during his time in office. Former special counsel Robert Mueller cited that guidance in deciding not to reach a conclusion on whether Trump should face charges as part of his investigation into coordination between the 2016 Trump campaign and Russia.

On Thursday, Attorney General Merrick Garland appointed a special counsel to investigate. Robert Hur, the former Trump-appointed U.S. attorney in Maryland, will lead the investigation. He is taking over from the top Justice Department prosecutor in Chicago, John Lausch, who recommended to Garland last week that a special counsel be appointed.

TRUMP: The former president possibly faces exposure for obstruction over the protracted battle to retrieve the documents. And, since he’s no longer in office, he wouldn’t be afforded protections from possible prosecution that would apply to a sitting president.

In November, Garland appointed Jack Smith, a veteran war crimes prosecutor with a background in public corruption probes, to lead investigations into Trump’s retention of classified documents, as well as key aspects of a separate probe involving the Jan. 6, 2021, insurrection and efforts to undo the 2020 election.

WHAT ARE THE POLITICAL IMPLICATIONS OF THE DISCOVERY OF THE DOCUMENTS?

BIDEN: Biden’s document disclosure could intensify skepticism among Republicans and others who are already claiming that politics is the basis for the probes of the former president.

There are also possible ramifications in a new, GOP-controlled Congress where Republicans are promising to launch widespread investigations of Biden’s administration.

Of the latest news, new House Speaker Kevin McCarthy, a California Republican, said, “I think Congress has to investigate this.” Contradicting several fellow members of his party, he added, “We don’t think there needs to be a special prosecutor.”

The top Republican on the House Intelligence Committee, Ohio Rep. Mike Turner, has requested that intelligence agencies conduct a “damage assessment” of potentially classified documents.

TRUMP: In its immediate aftermath, Trump and his supporters seized on the Mar-a-Lago search as a partisan attack from Democrats who had long been desirous of removing him from office.

During his 2024 campaign launch in November, at the same club agents had searched months earlier, Trump referenced the probes against him, casting himself as “a victim” of wayward prosecutors and the “festering, rot and corruption of Washington.”

MSNBC’s legal correspondent, Ari Melber offered a good analysis of this matter. Shorter version: the facts in the Biden documents matter do not warrant a special prosecutor, it is a routine matter that the Department of Justice handles all the time. AG Merrick Garland is appointing a Trump appointed attorney as a special counsel only because he is responding to the optics of the political firestorm created by the mighty Wurlitzer of the right-wing noise machine. Garland was pressured to quickly appoint a special counsel in the Biden matter only because he appointed a special counsel in the Trump matter (after 20 months of stonewalling from Trump and his lawyers). He is “pulling a Comey” by responding to the optics of the politics rather than focusing solely on the facts and the law.

Keep in mind that the very same Republicans who are now calling for an investigation into the Biden documents – which date back to his time as Vice President (2009-2016) – publicly defended Donald Trump’s theft of thousands of classified documents to Mar-a-Lago after his failed coup d’état on January 6, 2021, and they did not call for any investigation into the Trump classified documents, which likely contain active intelligence, methods and sources from 2017-2021. They defended his bogus claim that he could declassify documents simply by claiming that he declassified the documents in his mind. They parroted the paranoid conspiracy theories of Donald Trump about how the “deep state” is out to get him, in an abuse of government power. This is the foundational reason for the new House Select Subcommittee on the Weaponization of the Federal Government (to investigate every paranoid conspiracy theory into conservative victimhood). Republican claims of hypocrisy in this matter are simply psychological projection.

Following Ari Melber’s analysis, he had my favorite lawyer, Elie Mystal from The Nation, on as a guest interview. I agree entirely with his comments. If AG Merrick Garland is not up to the job, he should step down for someone who is. And Democratic administrations need to stop appeasing WATB Republicans by appointing Republicans to key Justice Department roles in the misguided hope that this will somehow quell their bad faith in politicizing justice department investigations, or give an investigation the imprimatur of legitimacy with the right-wing if one of their own conducts the investigation. There is no evidence to support this. Republicans always operate in bad faith.