The Justice Department considered but decided against sending FBI agents to President Joe Biden’s Delaware home to monitor his attorneys’ search for classified documents, two sources familiar with the matter told ABC News.
The detail was first reported by The Wall Street Journal.
Both the president’s attorneys and the Justice Department agreed to instead have Biden’s lawyers conduct the searches for classified documents, according to the sources.
It was something both sides agreed to, sources said, in part because Biden and his attorneys were cooperating with the Justice Department.
In three separate searches beginning in November, Biden’s lawyers found classified documents at his home in Wilmington, Delaware, and post-vice presidential office in Washington, D.C., according to the White House, which has described the materials as being kept from Biden’s vice presidency.
The revelation of classified documents found at Biden’s home led Attorney General Merrick Garland last week to appoint a special counsel to review Biden’s handling of classified materials.
The Justice Department and the FBI are declining to comment on the discussions.
The mixture of incomplete and shifting statements out of the White House in the weeklong span since the story broke has drawn parallels to the torrent of increasingly damning details that emerged immediately following the FBI search of former President Donald Trump’s Mar-a-Lago estate in August.
Due to the ongoing nature of a criminal investigation, the Justice Department and special counsel’s office won’t comment on the distinctions between the two matters, citing longstanding department policy.
No evidence, so far, to support Biden search, experts say
But legal experts, including former federal prosecutors reached by ABC News, say at least so far, that for Biden there doesn’t appear to be evidence that would justify the dramatic and unprecedented step of the FBI seeking a search warrant on the current president’s private residence.
To do so, as they did for Trump, prosecutors would have to persuade a federal judge that there’s probable cause that by conducting a search they would find evidence of a crime or multiple crimes.
Cooperation is a critical difference
At their core, experts say, the primary difference still between the two cases as they currently stand is the “full cooperation” currently being promised by Biden’s attorneys and widespread allegations of obstruction against Trump and his legal team dating back to as early as last spring.
“[In Biden’s case] it has to do with somebody coming forward and self-reporting — ‘We found these few documents’ — [then] they turn them over,” former Watergate prosecutor Nick Akerman said in an interview with ABC News. “If Trump had done the same, there would have been no grand jury, there probably would have been no search warrant and probably would have avoided a potential criminal problem.”
In the case of the search of Mar-a-Lago, ABC News reporting, in addition to a redacted affidavit made public by the Department of Justice, shows, in still-limited detail, what investigators presented in order to secure signoff on the historic search. It included an extensive track record of months of back-and-forth between Trump’s attorneys, their repeated resistance to handing back the documents, a Trump attorney signing a sworn statement in response to a grand jury subpoena that all documents had been returned after which the DOJ built evidence through witnesses and other means that that was false.
“Prosecutors had reason to believe that, despite prior declarations made by Trump attorneys that all classified materials had been turned over, the former president was still maintaining custody of classified materials that could not be accounted for,” former federal prosecutor Joseph Moreno told ABC News. “It seems those concerns were borne out when the raid by the FBI on Mar-a-Lago in August in fact did turn up additional classified documents.”
At one point, DOJ even made a visit to Mar-a-Lago where prosecutors said they were “explicitly prohibited” from opening or looking inside of any boxes in a storage room where later, during the FBI’s search, dozens of classified records were found.
While there is no way to completely rule out the possibility of a court-authorized search of Biden’s properties sometime in the future, such a decision typically only comes once prosecutors believe they have exhausted all other options to get the evidence they need.
“The only reason why Trump’s place got searched was because of the obstruction and the lying,” said attorney Mark Zaid, who specializes in national security and security clearance law. “There could be people who end up getting into trouble [in the case of potential mishandling of Biden’s records]. It’s very easy to be potentially criminally liable for mishandling of classified information … but mishandling of classified information is not grounds for the FBI to raid someone’s house, certainly not a president, former or current.”
A voluntary search?
Before the latest reporting that the DOJ had declined to monitor Biden’s attorneys’ search for documents, some experts raised the possibility that Biden’s team could offer to have the FBI conduct its own voluntary search of his properties to ensure there’s no remaining classified records, giving them the full kind of access that Trump prohibited.
“It is possible, sure they could, and it might make sense for the [FBI] to have some folks go in or [the National Archives] to do some searching,” Zaid said. “The problem is where would they find anything? That’s where we just don’t have the ability to ask questions.”
Akerman said such a proposal would typically be a nonstarter for defense attorneys.
“I never heard of a situation where the FBI goes in and just does a search because somebody self-reports,” Akerman said. “Normally, even in a criminal case, what you normally do in the first instance, unless you have some reason to believe that somebody is lying to you or is going to destroy records or is doing something untoward as you had with the Trump situation — you just give a grand jury subpoena.”
And the idea of a voluntary search would also not likely have great value to prosecutors, Akerman said.
“If somebody knows ahead of time, what’s the point if they’re really going to hide something?” he said. “They would have moved it off premises or gone somewhere else with it. The whole idea of the search warrant is to catch somebody by surprise because you’ve got probable cause that a crime was committed and evidence of the crime exists in that location.”
In the case of Mar-a-Lago, prosecutors identified three such crimes they believed they’d find evidence of: obstruction of justice, the Espionage Act and unauthorized possession or concealment of government documents. They laid out — after months of investigation and witness interviews — the evidence, which a judge agreed with, that they said would likely be present in Mar-a-Lago and even in specific areas of the club.
This is not to say that similar facts won’t develop in the coming weeks or months to justify a search of one or more of Biden’s residences.
But in the Justice Department, the decision to search Trump’s residence was seen as a true last-resort move after months and months of a complete breakdown in trust that continues to this day. Indeed, sources have told ABC News the government has been fighting in closed-court proceedings in recent weeks to have Trump verify he still doesn’t possess classified records.
“There could come a time [in the Biden investigation] when somebody thinks someone is lying and that would cause a huge, huge problem for sure, obviously,” Zaid said. “But I anticipate we’re not going to get there, at least at this stage.”
For now, experts say the next likely steps for special counsel Robert Hur in his newly launched investigation of Biden will probably be in line with basic investigative steps taken early on after the Justice Department was alerted to classified documents that were present at Mar-a-Lago early last year.
“What they’re gonna do is, they’re gonna go in, they’re gonna question people and interview people who were present in that office in Washington,” Akerman said. “They’re going to interview people who were responsible for putting the documents in the storage area in Biden’s home. They’re going to interview all those people, and they’re going to find out how that happened and how it got there.”
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