Joe Biden is facing the worst political crisis of his presidency after a failed attempt at damage control over his classified documents controversy landed him with what all White Houses dread – the naming of a special counsel.
Biden was doomed to face a political furor the moment his lawyers found the first secret vice presidential file in his former Washington office last fall. But by swiftly cooperating with the National Archives, his legal team may have spared him criminal exposure from the discovery – like that potentially facing ex-President Donald Trump over his document haul in Florida.
But then the botched messaging strategy became more clear – when Americans learned that a second batch of classified material, also dating to Biden’s time as vice president, had been found in a search of his home in Delaware. This detail was communicated to the Justice Department on December 20. And yet the White House didn’t disclose that this week when it spoke about the initial documents found last year in an office Biden previously used at the Penn-Biden center in Washington. This made it look like it was willing to come clean to the DOJ but not the public.
Not only did this make it look like Biden had something to hide, it set up the kind of drip, drip of disclosures guaranteed to supercharge a Washington scandal. And Biden’s bid Thursday to minimize the discovery of secret material in his garage – by saying it was locked to protect his beloved Corvette – didn’t exactly back up his earlier claim that Americans know he takes classified documents seriously.
The result is that the White House has offered a huge opening for a new Republican House majority feverishly committed to proving its own conspiracy theories that a liberal deep state has politicized justice to attack Trump and to cover up wrongdoing by Democratic presidents. And it has also made the prospect of any future prosecution of Trump over his Mar-a-Lago document stash, which may pose his greatest risk of criminal charges, even more politically explosive.
Trump, as he showed in his laceration of 2016 Democratic nominee Hillary Clinton over her emails, is merciless in exploiting a whiff of scandal against an opponent. He is now certain to leap on an impression of compromised transparency to mold a campaign-trail assault over Biden’s classified documents troubles designed to blur his culpability in a far more serious case.
Trump’s ally Kevin McCarthy, the new Republican speaker of the House, laid out what could be an effective case – at least for conservatives voters on Thursday.
“Here’s an individual that said on ’60 Minutes’ that was so concerned about President Trump’s documents. … And now, we find… just as a vice president, keeping it for years out in the open in different locations,” McCarthy said.
Scandal fever grips the White House
The White House is now facing the familiar and dizzying atmospherics of a Washington scandal – including demands for transparency, inquisitions from the press in a tense White House briefing room, questions about what the president knew and when he knew it, and the spectacle of his political enemies piling on.
And there is the haunting fear that grips 1600 Pennsylvania Avenue whenever a special counsel sweeps into view – along with the dreaded possibility that they could uncover some unrelated, but damning area of wrongdoing. Former Biden vice presidential aides – many of whom are now serving in his close-knit White House inner circle – will face the always distracting prospect of testifying under oath.
And there could be more unflattering details to come out, since CNN’s Kevin Liptak, Phil Mattingly, Jeff Zeleny and Arlette Saenz revealed on Thursday a chaotic administrative process at the end of the Obama administration, which may have allowed vice presidential documents to go astray.
And from a practical political perspective, the deepening controversy has halted what many Democrats saw as a White House winning streak after Republicans fared more poorly than expected in November’s midterm elections. On Tuesday, Biden’s attempt to show he was serious about the southern border crisis was overwhelmed when the documents flap followed him to Mexico. Two days later, his attempt to take credit for a slowdown in inflation – the economic crisis that bedeviled the White House last year – degenerated into a back-and-forth over the documents issue.
The White House’s public relations performance so far offers little confidence that Democrats will be able to hammer home their message as the storm rages – or that Biden’s expected announcement soon that he will run for reelection will not also face serious competition for attention.
Biden still faces far less legal exposure than Trump
Still, from everything publicly known about the controversy so far, it appears there are clear differences between the Biden case and the Trump one. There is no reason yet to doubt the statement by senior White House lawyer Richard Sauber that the documents were inadvertently misplaced and that this did not amount to a case of mishandling classified documents. Still, the White House’s selective transparency this week does raise some questions of credibility.
These doubts, however, pale in comparison to the behavior of Trump.
Whereas the president appears to have quickly cooperated with the National Archives, after the discovery of the first of a small number of documents, Trump apparently spent months stonewalling requests for the return of hundreds of pages of classified material. Biden, unlike Trump, never claimed the documents were his personal property or made fantastical claims they had been declassified by a private thought. That’s why there is, therefore, no sign Biden is being investigated for obstruction – as is the case for the former commander-in-chief. There is reason to think the White House claims that the affair can be quickly cleared up and the president will be exonerated could be borne out.
But the glaring vulnerability for Biden is that while the two cases can be separated legally, they are politically intertwined. Any conclusion after twin special counsel probes that cleared Biden but accused Trump of wrongdoing would cause uproar among Republicans whatever the relative facts of each case.
To a voter not following every twist of the drama, it will be easy for Republicans to argue that Biden’s Justice Department is pursuing Trump for a transgression of which the president is also guilty.
The intense political sensitivity of investigating a former president and current presidential candidate prompted Attorney General Merrick Garland to name Jack Smith as special counsel for the Trump investigations late last year.
When Biden then also had a classified documents problem, it was therefore almost inevitable – given suggestions of double standards – that a second special counsel would also be named.
Garland, clearly taking steps to protect the Justice Department after it was repeatedly drawn into politicized investigations in recent years, picked a former Trump administration Justice Department appointee Robert Hur to investigate the “possible unauthorized removal and retention of classified documents or other records.” Hur will also have the authority to probe “any matters that arose from the initial investigation” handled by the US attorney in Chicago, and anything that “may arise directly from” his own investigation.
Democrats may hope that the choice of a lawyer with clear credentials who was a Trump appointee may insulate Hur against political attacks.
But McCarthy has already signaled to his conference in the House that there can be open season on the White House – and past experience suggests Hur should brace for a political backlash.
The transactional nature of political outrage is already in evidence.
The spectacle of Republicans who repeatedly downplayed Trump’s far more problematic retention of classified documents now gravely talking about the sanctity of intelligence information is extraordinary. GOP lawmakers, goaded by conservative television, are already trying to suggest that Biden may have endangered US national security with the way the documents were stored.
The White House is going to need to up its communications game.