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Analysts React to Appointment of Special Counsel to Probe Biden Classified Documents

News Analysis

Attorney General Merrick Garland’s appointment of Robert Hur, a former U.S. attorney in Maryland, as special counsel who will lead an investigation into the discovery of classified documents at two locations connected to President Joe Biden is a step toward restoring credibility to the Department of Justice (DOJ), observers and legal experts have told The Epoch Times.

Some of the experts are not sanguine about the prospects for the investigation having direct immediate legal consequences for the president, given the time that it will take to perform even preliminary tasks in the undertaking and the differences, of both reality and perception, between Biden’s alleged oversight and the keeping of documents in former President Donald Trump’s Mar-a-Lago resident, the experts say.

But others view the revelations about the documents and the appointment of a special counsel, as a “watershed moment” that the new Republican majority in Congress may have been hoping for.

Epoch Times Photo
Attorney General Merrick Garland names a special counsel to investigate the handling of classified records found at President Joe Biden’s home and former offices, in Washington on Jan. 12, 2023. (Olivier Douliery/AFP via Getty Images)

Restoring Trust

The appointment of Hur is a sensible step, and Garland had few choices if he wished to retain credibility, one legal expert believes.

“This is the right thing to do,” Mark Weaver, a former DOJ spokesman and former deputy attorney general of Ohio who now serves as a special prosecutor in that state, told The Epoch Times.

Even before the news broke on Thursday, Weaver said he had predicted that such a move was likely.

“I was interviewed by a radio station last night, and I said there would be a special prosecutor appointed so that Merrick Garland did not have the final say on whatever charges are brought. The special counsel has independent latitude, and it’s a good sign that the law will be followed,” Weaver said.

Just as importantly, the appointment may help to restore a bit of the public trust that has eroded over time in the severely politicized environment and reached a nadir in the aftermath of the FBI’s raid on the Mar-a-Lago residence of a former president who no longer held any official role, a highly unusual action for a purportedly neutral law enforcement agency to take.

“Garland has already received much criticism for politicizing the Justice Department, and convening a special counsel, to review whether President Biden broke the law, is a good first step toward credibility,” Weaver said.

Epoch Times Photo
President Joe Biden speaks to reporters in Washington on Jan. 11, 2023. (Kevin Dietsch/Getty Images)

A Long Process

Weaver tempered this optimistic outlook with a blunt acknowledgment, based on his own experience as a prosecutor, of the logistical issues involved in organizing, coordinating, and carrying out such an investigation.

“I’d be surprised if we have any sort of answer from the special counsel anytime soon. Investigations take time, and someone who just got appointed will need a week or two just to get his legs under him and get his investigators into position to start asking questions. So it will probably be months before anything will come of this,” Weaver said.

“I’m currently appointed as a state special prosecutor, and when you get appointed, the first job is just to get the paperwork done to get the people assigned to you and the documents transferred over to you so you can start reading them. In the meantime, you’ve got your regular job to do,” he added.

Nonetheless, the appointment of the special counsel is still a coup for the GOP opposition and is likely to dog Biden in the weeks and months to come.

“This will hang over the president’s head through his reelection campaign until there is some resolution because he will be told by his lawyers not to answer questions about what he knew, but the questions will continue to be asked,” said Weaver.

Tread Carefully

Another factor is the delicate timing of the appointment, with Biden widely expected to announce his 2024 reelection bid as soon as next month. Prosecutors working for the Justice Department are not just bound by custom to avoid the appearance of politically-timed moves, they are under legal obligations not to interfere in politics.

“I used to work at the Justice Department, and their policy is not to try to affect elections. The work of the Justice Department is supposed to be done outside the glare of political campaigns. Under the federal guidelines, prosecutors are required to avoid announcing things right before an election unless there’s some pressing reason to do so,” Weaver commented.

Fortunately for Hur and all those concerned about the possible breaches of national security for which Biden may be liable, a special counsel, even under the federal guidelines, does enjoy more latitude than an ordinary prosecutor, or what is called, in the terms of the trade, a line lawyer, Weaver added.

“For line lawyers, it’s mandatory that they have the deputy attorney general approve any sort of investigation that would potentially affect a political campaign, there’s no choice, you have to follow that regulation about not announcing indictments. But a special counsel is different. The special counsel is supposed to make his own judgment about how and when to make prosecution decisions,” he continued.

Jeromino Cortina, a professor of political science at the University of Houston, agrees with Weaver that Garland’s move may help salvage some of the credibility of a department long reft of it.

“I think it’s a very good decision, frankly, from an institutional point of view. The Justice Department has become politicized. We saw that especially during the Jan. 6 hearings, how some members of the department and the White House attempted to use the DOJ for political reasons. So, I think that Garland’s appointment of a special counsel—a Trump appointee, by the way—gives legitimacy once again to how the DOJ runs,” Cortina told The Epoch Times.

The timing is particularly auspicious in light of the widespread attention given to the putative “weaponization” of the federal government, and the DOJ in particular, Cortina said. On Tuesday, the new GOP majority in the House of Representatives voted to form a select subcommittee to look into this phenomenon.

“This shows that no one is above the law, and that has been a cornerstone of our democracy,” Cortina added.

Cortina said he sees a couple of possible maneuvers on the part of Biden as the investigation unfolds. The president and his supporters are likely to try to contrast his legal team’s prompt handing over of the documents, once the leak came to light, to the National Records and Archives Administration (NARA). Biden may also attempt to minimize the importance of the documents, whose contents are not yet disclosed and which date to the era of the Obama-Biden administration.

“I think they may use these [factors] to their advantage. That might be something they can exploit during a possible reelection bid by President Biden,” Cortina said.

Mixed Reactions

Not all observers place faith in either the credibility or the likely success of the new special counsel and his staff, given the political orientation of the agencies that are likely to assist with evidence-gathering.

Mark Graber, a professor of law at the University of Maryland, told The Epoch Times he would have a hard time taking the work of the special counsel seriously, given the general conservatism of the FBI and other agencies that will lend their assistance.

Others find the importance of the revelations about the documents, and the appointment of Hur, hard to overstate. Biden’s luck may have finally run out, believes Michael Alcazar, a professor in the department of law, political science, and criminal justice administration at the City University of New York.

“The appointment of a special counsel may be a watershed moment for President Biden, who seemingly had been successful in avoiding legal issues during his presidency. The investigation may be a harbinger of speed bumps ahead for Biden’s next two years. The dereliction [regarding] the securing of these documents by Biden is the last thing the Democrats needed. It muddles their case against Trump,” Alcazar told The Epoch Times.

Besides the potential legal costs, there are clear and immediate reputational costs for Biden and his supporters.

“The president seemed just as surprised as the press was about the recovered documents in his garage. It would seem he himself had no idea about the whereabouts of those classified materials. This doesn’t instill public confidence in Biden,” Alcazar observed.

“Trump’s staff will predictably utilize this breach to their advantage as the former president aims for his 2024 campaign. Additionally, the new Republican majority in the House may start its own investigation,” he predicted.

The Epoch Times has reached out to the White House for comment.

Michael Washburn

Michael Washburn is a New York-based reporter who covers U.S. and China-related topics. He has a background in legal and financial journalism, and also writes about arts and culture. Additionally, he is the host of the weekly podcast Reading the Globe. His books include “The Uprooted and Other Stories,” “When We’re Grownups,” and “Stranger, Stranger.”

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