Garland Appoints Special Advisor on Confidential Biden Papers

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Attorney General Merrick Garland’s appointment of another special counsel on Thursday differs in several ways from Jack Smith’s appointment late last year — though both are looking at the handling of classified records.

US Attorney Robert Hur speaks at a news conference in Baltimore in 2019. (Lloyd Fox/The Baltimore Sun/AP)

Special Counsel Robert Hur was called in to look into the handling of documents after Joe Biden left the vice presidency in 2017, and Smith on what happened when Donald Trump left the White House in 2020.

But Garland’s language on the motives of the Biden special counsel’s investigation signaled that it is currently not as expansive as that involving Trump.

Hur’s appointment order said he will look into issues including the “possible removal and unauthorized retention of confidential documents or other records” at Biden’s private office in Washington, DC, and at his residence in Delaware.

Trump’s investigation, by contrast, is broader and more mature, with grand jury proceedings already underway.

Garland’s appointment order for Smith pointed to that larger, ongoing investigation that is looking into three possible crimes – the mishandling of information pertaining to national defense, the mishandling of federal records and the obstruction of justice.

“Rob has a succinct and narrowly defined indictment,” said Ed O’Callaghan, a senior Justice Department official from the Trump era.

O’Callaghan was among the small group that oversaw the end of Special Counsel Robert Mueller’s investigation in 2019.

“The scales of nominations are very different,” he said, noting that Smith is also overseeing an investigation into efforts by Trump and his allies to overturn the 2020 election.

Attorney General Merrick Garland appointed Special Counsel Jack Smith late last year.
Attorney General Merrick Garland appointed Special Counsel Jack Smith late last year. (Peter Dejong/AFP/Getty Images)

Garland also failed to mention the possibility of Biden running for re-election on Thursday. Instead, the attorney general said “extraordinary circumstances” led to Hur’s appointment, which he said “is in the public interest”.

By contrast, Trump’s announcement of his 2024 candidacy for the presidency was a centerpiece of Garland’s reasoning when he nominated Smith in November.

“Based on recent developments, including the former president’s announcement that he is a candidate for president in the upcoming election and the incumbent president’s stated intention to also run as a candidate, I have concluded that it is in the public interest to nominate a special attorney candidate,” he said. Garland at the time.

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