Investigation underway after classified documents found at Joe Biden's former private office

"The discovery of these documents was made by the President's attorneys."
"The discovery of these documents was made by the President's attorneys." Photo credit: Getty Images.

Several classified documents from President Joe Biden's time as vice president were discovered last fall in a private office, Biden's attorneys acknowledged Monday.

Attorney General Merrick Garland has asked the US attorney in Chicago to investigate the matter, a source familiar with the matter tells CNN, and congressional Republicans are also taking notice.

Biden's lawyers say they found the government materials in November while closing out a Washington, DC-based office -- the Penn Biden Center for Diplomacy and Global Engagement -- that Biden used as part of his relationship with the University of Pennsylvania, where he was an honorary professor from 2017 to 2019.

Fewer than a dozen classified documents were found at Biden's office, another source told CNN. It is unclear what the documents pertain to or why they were taken to Biden's private office. Federal officeholders are required by law to relinquish official documents and classified records when their government service ends.

"The White House is cooperating with the National Archives and the Department of Justice regarding the discovery of what appear to be Obama-Biden Administration records, including a small number of documents with classified markings," Richard Sauber, special counsel to President Biden, said in a statement. "The documents were discovered when the President's personal attorneys were packing files housed in a locked closet to prepare to vacate office space at the Penn Biden Center in Washington, D.C. The President periodically used this space from mid-2017 until the start of the 2020 campaign. On the day of this discovery, November 2, 2022, the White House Counsel's Office notified the National Archives. The Archives took possession of the materials the following morning."

"The discovery of these documents was made by the President's attorneys," Sauber added. "The documents were not the subject of any previous request or inquiry by the Archives. Since that discovery, the President's personal attorneys have cooperated with the Archives and the Department of Justice in a process to ensure that any Obama-Biden Administration records are appropriately in the possession of the Archives."

CBS News first reported on the documents.

The classified materials included some top-secret files with the "sensitive compartmented information" designation, also known as SCI, which is used for highly sensitive information obtained from intelligence sources.

After the discovery, Biden's lawyers immediately contacted the National Archives and Records Administration, which started looking into the matter, the source said. Biden's team cooperated with NARA, which later came to view the situation as a mistake due to lack of safeguards for documents, the source said.

In November, NARA sent a referral to the Justice Department to look into the matter, a source with knowledge of the situation told CNN.

The US attorney in Chicago, John Lausch Jr., is investigating. Lausch was one of the rare Trump-era holdovers who wasn't asked to resign after Biden's inauguration. He was appointed by Trump in 2017 and unanimously confirmed by the Senate. Illinois' two Democratic senators said in 2021 that they wanted Lausch to remain at his top post "to conclude sensitive investigations," though they didn't reveal what probes he was working on.

Political fallout

The discovery of the materials come as special counsel Jack Smith is investigating former President Donald Trump for potentially mishandling classified records at his Mar-a-Lago resort in Florida. Federal investigators have recovered at least 325 classified documents from Trump as part of their inquiry.

Republicans are already asking questions.

"President Biden has been very critical of President Trump mistakenly taking classified documents to the residence or wherever and now it seems he may have done the same," said GOP Rep. James Comer of Kentucky, who is set to become the House Oversight Chairman. "How ironic."

Comer pointed out that the National Archives falls under his committee's jurisdiction for oversight but said when they, while in the minority, sent NARA questions related to former Trump, NARA referred Republicans to the Justice Department.

"Maybe they'll answer our questions now because it pertains to two presidents," Comer said, adding he plans to ask the archives for more information later this week.

Ever since the FBI searched Mar-a-Lago in August -- a search that uncovered dozens of additional classified files -- Trump has promoted wild and unfounded allegations about his predecessors' supposed mishandling of government records. The news about classified records turning up at Biden's private office is sure to provide new fodder to Trump, who has already announced his 2024 presidential bid.

Biden was critical of Trump when he saw the photograph taken by the FBI that showed an array of documents found on Trump's property last summer.

"How that could possibly happen? How one -- anyone could be that irresponsible?" Biden said. "And I thought what data was in there that may compromise sources and methods? By that I mean names of people who helped or, et cetera. ... totally irresponsible."