The special counsel in the Biden classified documents case, explained

US Attorney General Merrick Garland announced Thursday that he has appointed a special counsel to investigate why classified materials were found in President Joe Biden’s home and former private office.

Robert Hur, a former US attorney in the Trump administration, will take over the investigation. Biden said he was cooperating. Hur will be tasked with determining whether any crimes were committed in the handling of classified materials, which began when Biden was vice president, and have since become the property of the federal government under the Presidential Records Act.

This isn’t the first time in recent months that Garland has sought a special counsel. He also chose one to investigate former President Donald Trump’s withholding of classified material found at his Florida home at Mar-a-Lago.

This is a role designed to act at a distance, but not independently, from the Department of Justice to avoid impropriety in cases where there may be a conflict of interest. Here’s what you need to know.

When is a special counsel needed?

The Department of Justice regulations require the attorney general to consider appointing a special counsel when a criminal investigation of a person or matter has been warranted, and when the DOJ may face a conflict of interest in conducting the investigation itself; for example, if the attorney general or other members of the executive branch are under investigation. A special counsel is also required when there are other “extraordinary circumstances” that make it in the public interest to appoint a special counsel, such as a sitting president under investigation. Garland said Thursday there were extraordinary circumstances in Biden’s case.

It’s not clear whether Biden committed a crime by keeping classified documents outside of a secure federal facility; that is what the special counsel will look into. Biden is now president, and there is an investigation into former President Donald Trump for mishandling classified documents, making this the highest-profile investigation ever. But it is not unusual for the DOJ to open an investigation into this case.

“Any time classified materials go somewhere they’re not supposed to go, there’s almost always a question about how they got there,” said Kristy Parker, former deputy chief of the criminal division of the DOJ’s civil rights division. and now advises at Protect Democracy, an organization that seeks to check authoritarian attacks on American democracy. “The department certainly takes it very seriously.”

Garland was appointed by Biden and, if he leads the investigation, his history could create a conflict of interest. This is the main reason why Garland turned the investigation over to the special counsel. That may be why Garland chose Hur, who has no ties to the Biden administration. (Apparently, Garland did not appoint a special counsel to investigate the mishandling of classified documents found at Trump’s property until the former president announced his 2024 candidacy, making him a political opponent of Biden and creating a potential conflict of interest.)

“What is most important in a democracy is to have the nation’s primary law enforcement agency functioning independently of partisan politics,” Parker said. “So my view is that he acted appropriately to put someone in charge of this investigation who is not someone appointed by Joe Biden or who has worked in a department overseen by the Biden administration.”

What are the powers and limitations of special counsel?

Special counsels have the same powers as U.S. attorneys to conduct criminal investigations: for example, subpoena witnesses and documents, direct federal agents to conduct investigative activities, and request warrants in court. But there are some limits to those powers, as the special counsel must consult with the attorney general on key decisions.

“While he’s away from the attorney general and he’s not an employee of the Department of Justice now, he still reports to the attorney general. It’s ultimately the attorney general’s final call on whether a case should be prosecuted or closed,” Parker said.

The regulations do not require recommendations from special counsel to be made publicly available. But if the attorney general opposes the special counsel’s recommendation, he must report to Congress after the investigation is complete, and lawmakers can announce the decision.

In the case of special counsel Robert Mueller’s investigation into Russian interference in the 2016 election, the findings were made public – but only after Attorney General Bill Barr published his own scathing summary of Trump campaign associates’ contacts in Russia and evidence. that Trump obstructed justice.

It may not make sense to make the findings publicly available in cases where the DOJ seeks an indictment, to avoid disclosing all the evidence before taking the case to trial. But in cases where the DOJ refuses to prosecute, “it is customary and, in my view, in the public interest, to explain to the public,” Parker said.

What will happen in the Biden case remains unclear, as does the timeline for completing the investigation. But so far, Parker says the DOJ is acting as expected.

“I think this is a very important step by the attorney general to do what he set out to do when he was appointed, which is to restore the department’s reputation as an independent law enforcement agency,” he said.