The words “special counsel” are ringing in Joe Biden’s ears, which are words that no president ever, ever likes to hear.
These are the impartial attorneys who have been chosen, typically by attorneys general, to independently examine any conduct involving the president or his administration. You may not remember their names, but you are aware of their body of work.
Watergate. Iran-Contra. Whitewater. the inquiry into Russia. Cupcake Dome.
The George W. Bush administration’s disclosure of the identity of an undercover CIA agent whose spouse questioned Iraqi intelligence, the government’s ultimately fatal siege of the Branch Davidian complex, and Jimmy Carter’s peanut business are among the other matters under scrutiny.
Be aware that I’m include independent counsels, independent prosecutors, special prosecutors, and special counsels here. After high-profile and expensive investigations into the Iran-Contra affair during the Reagan and George H.W. Bush administrations as well as the Whitewater scandal during the Clinton administration, a law that allowed independent prosecutors or independent counsels, who had more autonomy from the Department of Justice, expired in 1999. Since then, the Department of Justice has put rules in place that allow the attorney general to engage a special counsel as needed.
Since Carter, only Barack Obama has left office without having his administration’s performance under investigation by a special counsel or special prosecutor. See the A-Mark Foundation’s and The Washington Post’s lists of these investigations.
two special prosecutors
There are currently two special counsels working simultaneously. One, Jack Smith, is investigating the numerous investigations surrounding the former president Donald Trump, including his attempt to rig the 2020 election, his handling of classified information, and his stonewalling that prompted the FBI to investigate Mar-a-Lago last summer.
The other, appointed this week, is Robert Hur, who will determine what should happen as a result of sensitive documents being discovered at Biden’s Wilmington, Delaware home as well as in the garage where he kept his Corvette while serving as vice president of the United States.
The camps for both Biden and Trump have refuted any misconduct.
Republican appointments to previous positions
Hur’s other official appointments, including that as US attorney in Maryland by former President Donald Trump, all occurred under Republican governments. He worked as a law clerk for several federal courts, including the late Chief Justice William Rehnquist of the Supreme Court, who had been selected by former President Ronald Reagan. He had held a prominent position as Christopher Wray’s assistant, the current FBI director and a Trump appointee who has faced criticism. He oversaw a corruption case in Maryland where the former Democratic mayor of Baltimore received a three-year prison term as a result of a children’s book scandal.
Political prosecutions in the past
Smith, who is directing inquiries against Trump, was a Justice Department employee under the Obama administration. Smith participated in the Justice Department’s public integrity unit’s decision to prosecute former Virginia governor Bob McDonnell, a Republican who was found guilty of corruption but whose conviction was later overturned by the Supreme Court. Additionally, he participated in the Democrat former senator John Edwards’ unsuccessful prosecution.
Biden pledges collaboration while Trump launches offensives
The targets of the two special prosecutors’ investigations are likely to behave very differently.
Hur will receive assistance from the Biden White House, but Trump has already given up on Smith.
Trump began a tirade on his social media platform on Thursday by writing, “The Special ‘Prosecutor’ assigned to the ‘get Trump case,’ Jack Smith(? ), is a Trump Hating THUG whose wife is a chronic and open Trump Hater, whose friends & other family members are far worse.”
Special prosecutors continue to answer to the attorney general.
There are several significant differences in the authority that a special counsel has. Between 1978 and 1999, the attorney general had the option of requesting that a three-judge panel appoint an impartial prosecutor with almost complete authority to file charges. The Congressional Research Service has further information.
Attorneys general have more recently appointed special counsels who have some authority but ultimately answer to them. When Trump’s attorney general William Barr handled the release of the special counsel Robert Mueller’s report on the Russia probe in a way that appeared to be advantageous to Trump, the line of command was amply made obvious.
Therefore, Merrick Garland or his successors will ultimately decide how to handle the Smith and Hur conclusions.
The issue with Biden’s shifting timeframe
Although the White House has stated that it will work with the special counsel, it is becoming less credible in this regard.
In November, in both his office and home, Biden’s attorneys discovered sensitive documents. The records discovered in the home, however, were not included when the administration initially discussed the discoveries publicly this month.
According to CNN’s Stephen Collinson, “Not only did this give the impression that Biden had something to hide, it set up the kind of drip, drip of disclosures destined to accelerate a Washington controversy.”
However, the White House has disputed that idea, claiming that all secret materials that were found were eventually made public.
“The president’s lawyers contacted the Archives as soon as they learned that the documents were actual and present. They made contact with the Justice Department. I should add, quite rightly. White House press secretary Karine Jean-Pierre stated at the White House on Thursday that this is what you should do.
In the most recent change in the amount of documents with secret markings identified by the president’s lawyers, the White House reported on Saturday that Biden’s aides had earlier in the week discovered five extra pages of material at his home.
Manilla envelope with the label “VP personal”
In early 2017, CNN’s White House team released a deep dive investigation on Biden’s final days as vice president. During this time, it appears that these secret documents ended up at Biden’s home, locked up next to his Corvette, as he said on Thursday, and at the Penn Biden Center.
According to one person in the paper, the finding that started this issue was made by a Biden lawyer going at “a manilla folder labelled ‘VP personal’.”
The 10 secret documents, according to CNN’s story based on that source, were US intelligence memoranda and briefing materials that addressed subjects like Ukraine, Iran, and the United Kingdom. Additionally, there are memos from Biden to Obama and briefing papers that were written to prepare Biden for calls with the British prime minister and Donald Tusk, who is the president of the European Council.
Extremely diverse investigations
It’s critical to distinguish between the two investigations investigating the leaders’ handling of sensitive information, each of which has a special counsel assigned. The bigger problem for Trump is that he resisted turning over documents to the National Archives as required by law and might have prevented government efforts to get them back.
Because of his obstructionism and other circumstances that aren’t present in the Biden case, Norm Eisen, the ethics attorney who defended Democrats during Trump’s first impeachment, argues for CNN Opinion that Biden is unlikely to ever face charges. Special counsels and confidential information are two things that the cases have in common, but not much else.
Past: There are too many secrets
I spoke with government transparency campaigner Thomas Blanton of the National Security Archive earlier in the Trump classified documents saga in 2022 about how the US government classifies far too much information.
The controversy over the Biden classified materials may support his arguments. He informed me that it is obvious that information pertaining to intelligence sources or nuclear weapons ought to be kept secret. However…
The ongoing battle is to fight bureaucratic demands that force “secure-a-crats” to cover their rears with confidential documents for the most part while making sure that the true secrets that will lead people to be killed are actually secured.
A new development has been added to this article.