A version of this story appeared in CNN’s What Matters newsletter.To get it in your inbox, sign up for free here.
Joe Biden has the voice no president wants to hear: the special counsel.
These are independent attorneys, usually appointed by the attorney general, to investigate actions involving the president or his administration in the absence of a conflict of interest. While you may have forgotten their names, you are familiar with their work.
Watergate. Irangate. white water. Russia investigation. Teapot Dome.
Other investigations include the George W. Bush administration’s leak of the identity of an undercover CIA agent whose husband questioned intelligence about Iraq, the government’s eventual deadly siege of the Branch Davidian compound, and Jimmy Carter’s peanut business.
Note that I include special counsel, special counsel, independent counsel, and independent prosecutors. A law authorizing independent prosecutors or independent counsel lapsed in 1999 following high-profile and expensive investigations into Iran-Contra by the Reagan and Bush Sr. administrations and Whitewater by the Clinton administration. In the years since, the judiciary has The Ministry has adopted regulations enabling the Attorney General to call in a special prosecutor if required.
Since Carter, only Barack Obama has left the White House without a special counsel or special counsel reviewing his administration. See these checklists compiled by the A-Mark Foundation and The Washington Post.
Now, there are two special prosecutors at the same time. One of them is Jack Smith, who is investigating multiple investigations involving former President Donald Trump, from his efforts to overturn the 2020 election to his handling of classified data and the obstruction that led to the FBI’s search of Mar-a-Lago last summer.
Another appointment this week is Robert Hur, who will assess the secrecy uncovered in the Washington, D.C. office Biden used as vice president and in classified documents locked in his garage in Wilmington What happens to the Docs, Delaware, home, where he still keeps his Corvette.
Both Biden and Trump’s teams have denied wrongdoing.
All of Hull’s previous appointments to official positions have come under Republican administrations, including his appointment by former President Donald Trump as U.S. Attorney for Maryland. He served as a legal clerk to federal judges appointed by former President Ronald Reagan, including the late Supreme Court Chief Justice William Rehnquist. He previously held a senior position as an assistant to current FBI Director Christopher Wray, who was also a Trump appointee but has been criticized by Trump. As U.S. Attorney for Maryland, he oversaw a corruption case in which the former Democratic mayor of Baltimore was sentenced to three years in prison for a children’s book scandal.
Smith, who is coordinating the Trump investigation, worked at the Justice Department during the Obama administration. While serving in the Justice Department’s Public Integrity Unit, Smith was involved in the decision to prosecute former Virginia Gov. Bob McDonald, a Republican who was convicted of corruption charges, although the Supreme Court later reversed the decision convicted. He was also involved in the failed prosecution of Democratic former Senator John Edwards.
The subjects of the investigations of the two special counsels are expected to be treated very differently.
Biden’s White House has committed to working with Hull; Trump has written off Smith.
“The special ‘prosecutor’ assigned to ‘get the Trump case’, Jack Smith (?), is a Trump-hating thug whose wife is a serial, avowed Trump-hater, His friends and other family members were even worse,” Trump said. Turned on the screed Thursday on his social media platforms.
There are some important differences in what kind of powers a special counsel has. Between 1978 and 1999, as part of the government’s legal code of ethics, the attorney general could ask a panel of three judges to appoint an independent prosecutor, who would have almost full powers to prosecute. Read more from the Congressional Research Service.
More recently, the Attorney General has appointed special prosecutors who have some autonomy but still ultimately report to the Attorney General. That chain of command was crystal clear when Trump’s attorney general, William Barr, slowly released special counsel Robert Mueller’s report on the Russia investigation in Trump’s favor.
So Merrick Garland or his successor will ultimately decide what to do with Smith and Hull’s findings.
Although the White House says it will cooperate with the special counsel, the reality is that it is developing a credibility gap on this issue.
Biden’s attorneys discovered classified documents at Biden’s office in November and at his home in December. But when the government addressed the findings publicly this month for the first time, they made no mention of the documents found at the home.
“Not only does it make it look like Biden has something to hide, but it establishes a bit, bit of disclosure guaranteed to fuel the scandal in Washington,” CNN’s Stephen Collinson wrote Friday.
However, the White House has disputed that notion, arguing that all the classified document discoveries were eventually disclosed.
“When the president’s lawyers realized these documents existed, they contacted the archives. They contacted the Department of Justice. Of course, I might add. That’s what you should do,” White House press secretary Karin Jean-Pierre said. Hall said at the White House on Thursday.
CNN’s White House team released an in-depth report looking back at the final days of Biden’s vice presidency in early 2017, a period that, as Biden said Thursday, appears to have led to the classified documents ending up in his home, locked in a Next to his Corvette, and the Biden Center in Pennsylvania.
Evidence that sparked the scandal was uncovered by a Biden attorney investigating “a Manila folder labeled ‘VP personal,'” according to one of the people in the report.
According to the source, CNN reported that there were 10 classified documents, including U.S. intelligence memos and briefing material, on subjects including Ukraine, Iran and the United Kingdom. There was also a memo from Biden to Obama and a briefing aimed at getting Biden ready for a phone call with the British prime minister and Donald Tusk in his capacity as European Council president.
While there are two investigations, each appointing a special counsel to investigate leaders’ handling of classified material, it’s important not to conflate them. The bigger problem for Trump is that he opposes the release of documents to the National Archives as required by law and may have stymied the administration’s efforts to retrieve them.
“Based on what we know now, Biden is unlikely to face charges, while Trump is at high risk because of his obstructionist behavior and other factors not in Biden’s case,” Helping Democrats Amid Trump’s First Impeachment Norm Eisen, the Democrats’ ethics lawyer, writes for CNN Opinion. “These cases have a shared special counsel and classified documents — but nothing else.”
Earlier in the 2022 Trump classifieds saga, I spoke with Thomas Blanton, a government transparency activist at the National Security Archive, about how the U.S. government is classifying too much material.
Biden’s classified documents incident may help prove his point. He told me that apparently there was something to do with intelligence sources or nuclear weapons that needed to be kept secret. However…
“The ongoing battle is against bureaucratic orders that have led ‘security freaks’ to largely cover their rear with classified documents, but keeping real secrets kills.”