On Thursday, Attorney General Merrick Garland appointed a special counsel to investigate the handling of classified documents found in the private office and home of President Joe Biden. The documents are believed to date from the Obama era, when Biden was Vice-President. In early November, less than a week before the midterm elections, Biden’s legal team uncovered the office documents and turned them over to the National Archives, which then alerted the Department of Justice. (The Biden team did not itself reach out to D.O.J.) A month later, the legal team discovered additional classified documents in Biden’s garage. The initial White House statement on the matter, which was made on Monday, mentioned the office documents but omitted the garage ones. (On Thursday, the White House confirmed the existence of the garage documents, and of one additional classified document found in an adjacent room.)
This is the second special counsel that Garland has appointed to look into cases involving Presidents and documents. Late last year, he asked Jack Smith to oversee the case involving Donald Trump and the classified materials he had stored at Mar-a-Lago. (In that case, Trump refused for many months to turn over all of the documents, which led to an F.B.I. search of the property.) Robert K. Hur, who served in the Trump Administration, will oversee the Biden inquiry.
To talk about Biden’s response, and how classified material was handled at the end of the Obama Administration, I spoke with Neil Eggleston, who was the White House counsel for the final two and a half years of Obama’s Presidency. In the nineteen-eighties, he was an Assistant U.S. Attorney for the Southern District of New York; he is now a lecturer at Harvard Law School. As Obama prepared to leave office, Eggleston played a role in transferring all official documents, including classified documents, to the National Archives. During our conversation, which has been edited for length and clarity, Eggleston and I discussed the details of that process, whether Biden’s current legal advisers erred in not immediately notifying the F.B.I. when the documents were discovered, and whether too many government materials are classified in the first place.
As a White House counsel, what would you have done upon learning that the President had these documents from a prior Administration at his office and home?
I think I would have done what Biden’s team did, which is to go and search the location. The timeline, I think—to me, at least—is a little fuzzy about when they did the various searches. [On Saturday, the White House announced that an additional five pages of classified material were discovered at Biden’s home.] But I would’ve done basically what the White House seems to have done, which is turn them over to the National Archives.
What about not informing the Justice Department? It seems that the White House alerted the National Archives and assumed that the Justice Department would be notified by them. How do you think that through?
Well, based on what we know now, there’s really no particular reason to think that a crime was committed here. It appears that, as the Vice-President’s office was being dismantled [at the end of Obama’s Presidency], some classified information got commingled with other material, and as soon as it was located it was turned over to the National Archives. It should have been turned over to the National Archives before then Vice-President Biden had left the White House. Probably the decision was: We’ll give it to the National Archives, which is where we should have given it, and if they feel that a referral to the Department of Justice is appropriate, they’ll do the referral, frankly, just as they did with former President Trump.
You seem to be saying, essentially, that although these classified documents are not where they’re supposed to be, because there’s no evidence of a crime, it’s up to the National Archives to alert the Justice Department, which does criminal investigations. Unless there’s evidence that this was a crime—to knowingly keep classified documents that you’re not supposed to have—there’s no reason for the White House to bring this to the Justice Department.
That would be my view. Now, look, just as a prudential matter, the White House could have handled it differently, because the Trump matter was already with the Justice Department. They could have made decisions to alert the Department of Justice immediately, but I don’t fault them for taking the route that would’ve been the routine process. Whenever you find documents that should have been turned over to the National Archives, I think the first response is: Well, we should have given them to the National Archives instead of taking them away from the White House at the end of the Vice-President’s term, so we’ll get them to the National Archives. I think that was probably the way this incident went.
The White House counsel is such an interesting, complicated position. Because this had to do with Biden’s previous position, as Vice-President, why wouldn’t this be a matter for his personal lawyer?
A personal lawyer is not authorized to review classified information. If you think about it, the most logical person to do it is the office of the White House counsel. At the time all of this is happening, Biden is President of the United States. So I think to have the White House counsel involved is completely logical—I certainly would’ve been involved if I were White House counsel at the time this happened.
Back in August, when President Biden criticized Trump for how he dealt with classified information, would the White House counsel offer advice along the lines of, Well, if we’re going to say this, we should make sure you don’t have classified material?
It’s hard to put myself back there in light of what’s happened, but I don’t think I would’ve thought that.
Can you talk a little bit about the last days of an Administration and people packing up their offices in the White House? What’s the process like?
Every office is different. And, in fairness, I dealt more with President Obama than I did with then Vice-President Biden. He had his own lawyers on staff, and I think he had his own staff secretary, who is the person who manages documents and all that kind of stuff. I think he had his own staff that dealt with all of that.
I didn’t just mean Biden. I meant generally how closing down an office works. I think people might be interested.
Yeah, sure. I’ll tell you a little bit about how it closed down at the end of Obama. In some ways, doing that was under the jurisdiction of the White House counsel, because there are all these legal protocols that you have to follow. We started quite early, actually. We had by far the largest volume of electronic data, and I think we started in late summer transferring that material over to the National Archives because it was just going to take a very long time. They had servers, and they were all on White House property, so nothing left the property until Inauguration Day. On Inauguration Day, everything had been transferred to the appropriate servers in the National Archive, and I think a switch was flipped and all the documents that were on the White House systems were deleted, which is the way it’s always happened and the way it’s supposed to happen.
And people forget, regardless of who the President is, entities like the National Security Council, the Office of Management and Budget, they have a lot of career people, they continue. So it’s different with them. But for people in the President’s office, the senior advisers to the President, there’s not a piece of paper or electronic record left when there’s a transition to a new President. That’s just the way it is. And all of that’s supposed to be transferred to the National Archives.
The rules are pretty simple, which is that all Presidential records, meaning essentially all official records, are supposed to be sent to the National Archives, and personal material you can take home with you. I’ve read that among the materials they found are documents related to Beau Biden’s funeral. Those are personal to President Biden, and for him to keep those as personal records would be completely appropriate. If you’ve got pictures of your kids on your desk, or if you have other personal documents—you may have planned the trip you were going to take when the Administration is over—all that you’re allowed to take. But if it’s an official document, you’re not allowed to take it, or a copy of it. You’re supposed to leave all of that.