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There’s something ringing in Joe Biden’s ears that no president ever wants to hear: special advice.
They are the independent attorneys appointed, usually by attorneys general, to review, without conflict of interest, actions involving the president or his administration. Although you may have forgotten their names, you know their work.
Watergate. Iran-Contra. Living Water. The Russia Survey. Dome teapot.
Other investigations include investigations into the George W. Bush administration’s leak of the identity of an undercover CIA agent whose husband questioned intelligence on Iraq, the ultimately deadly siege by the government of the Branch Davidian compound and the peanut business of Jimmy Carter.
Note that I am including special advocates, special prosecutors, independent attorneys and independent prosecutors here. A law that allowed independent prosecutors or independent attorneys, who had more autonomy from the Justice Department, lapsed in 1999 after high-profile and costly investigations under the Reagan and George H. W. Bush administrations into the case Iran-Contra and under the Clinton administration in Whitewater. . In the years that followed, the Department of Justice passed regulations allowing the Attorney General to call in a special advocate when needed.
Since Carter, only Barack Obama has walked out of the White House without a special advocate or special prosecutor looking into his administration. See lists of these surveys compiled by the A-Mark Foundation and The Washington Post.
Now there are two special tips at the same time. One, Jack Smith, delves into the multiple investigations involving former President Donald Trump, ranging from his efforts to overturn the 2020 election to his handling of classified data and the obstruction that led the FBI to search Mar -a-Lago last summer.
The other, named this week, is Robert Hur, who will assess what should happen following the discovery of classified documents both in a Washington, DC office, used by Biden after his vice presidency, and locked in the garage of his Wilmington, Delaware, home, where he also keeps his Corvette.
The Biden and Trump teams have denied any wrongdoing.
All of Hur’s previous appointments to official positions have come under Republican administrations, including his appointment as United States Attorney in Maryland by former President Donald Trump. He served as legal counsel for federal judges appointed by former President Ronald Reagan, including the late Chief Justice of the Supreme Court William Rehnquist. He once held a high-profile position as an aide to current FBI Director Christopher Wray, also appointed by Trump but criticized by Trump. As a US attorney in Maryland, he oversaw a corruption case where the former Democratic mayor of Baltimore was sentenced to three years in prison over a children’s book scandal.
Smith, who coordinates investigations into Trump, worked at the Justice Department during the Obama administration. While in the Justice Department’s Public Integrity Unit, Smith was involved in the decision to prosecute former Virginia Governor Bob McDonnell, a Republican who was convicted of bribery, although the Supreme Court later overturned the conviction. He was also involved in the failed prosecution of former senator John Edwards, a Democrat.
The two special prosecutors can expect very different treatment by the subjects of their investigations.
Biden’s White House vowed to cooperate with Hur; Trump has already disbarred Smith.
“Special ‘Trump Case’ ‘Prosecutor’ Jack Smith (?) Is A Trump Hating THUG Whose Wife Is A Serial, Open Trump Hater, Whose Friends And Other Family Members Are Still worse,” Trump said in opening a screed on his social media platform on Thursday.
There are important distinctions as to the type of power a special advocate has. Between 1978 and 1999, as part of a code of ethics in government law, the attorney general could ask a panel of three judges to appoint an independent prosecutor with near total authority to bring charges. Learn more about the Congressional Research Service.
More recently, attorneys general have appointed special advocates, who enjoy some autonomy but still ultimately report to the attorney general. This chain of command was very clear when Trump Attorney General William Barr slowed the release of Special Counsel Robert Mueller’s report on the Russia investigation in a way that seemed beneficial to Trump.
Thus, it is Merrick Garland, or his successors, who will ultimately decide what to do with Smith and Hur’s findings.
Although the White House has said it will cooperate with the special counsel, the fact is that it is developing a lack of credibility on this issue.
Biden’s lawyers found classified documents in Biden’s office in November and at his home in December. But when the administration first publicly announced the findings this month, it did not mention the documents found in the house.
“Not only did it look like Biden had something to hide, but it set up the kind of drip, drip of guaranteed disclosures to fuel a scandal in Washington,” CNN’s Stephen Collinson wrote on Friday. .
The White House, however, pushed back against that perception, arguing that the findings of all classified documents have eventually been released.
“When the president’s lawyers realized that the documents existed, that they were there, they contacted the Archives. They contacted the Department of Justice. Rightly so, I may add. That’s what you’re supposed to do,” White House press secretary Karine Jean-Pierre said at the White House on Thursday.
On Saturday, the White House announced that Biden’s aides found five additional pages of classified documents at his personal residence earlier in the week in the latest change to the total number of documents with classified marks uncovered by the president’s attorneys.
CNN’s White House team released an in-depth report on Biden’s final days as vice president in early 2017, the period that appears to have resulted in these classified documents ending up in his home, locked up next door. of his Corvette, as Biden said on Thursday, and at the Penn Biden Center.
The discovery that sparked this scandal was made by a Biden attorney who reviewed “a manila file marked ‘Personal VP,'” according to one person in the report.
The CNN report, based on this source, says there are 10 classified documents, including US intelligence memoranda and briefing documents that covered topics including Ukraine, Iran and the UK . There is also a note from Biden to Obama and briefing notes intended to prepare Biden for a phone call with the British Prime Minister and another with Donald Tusk, in his capacity as President of the European Council.
While there are two probes, each with a special advocate appointed to investigate the executives’ handling of classified documents, it’s important not to confuse them. The biggest problem for Trump is that he fought to give documents to the National Archives as required by law and may have obstructed government attempts to retrieve them.
“Based on what we know now, Biden is unlikely to ever face charges, while Trump is at high risk due to his obstructive conduct and other factors not present in the Biden case,” said Norm Eisen, the ethics lawyer who helped Democrats with Trump’s first impeachment. , written for CNN Opinion. “The cases have special advice and classified documents in common – but nothing else.”
Earlier in Trump’s 2022 classified documents saga, I spoke to government transparency campaigner Thomas Blanton of the National Security Archive about how the US government classifies far too many documents.
Biden’s classified documents saga could help prove his case. He told me that there are clearly things related to intelligence sources or nuclear weapons that need to be kept secret. However…
“The constant struggle is to fight the bureaucratic imperatives that push ‘secure-a-crats’ to cover their asses mostly with classified documents, but ensuring that the real secrets that will get people killed are really protected. .”
This story has been updated with additional developments.