68 Days of Silence: Why the White House Stayed Mum on Classified Documents
Starting on Nov. 10, just one day after Attorney General Merrick B. Garland assigned a Trump-appointed U.S. attorney to look into the matter, the president’s counselors were in “regular contact,” as Mr. Bauer said in a statement, with their counterparts at the Justice Department.
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In a letter to Mr. Bauer in mid-November, a senior Justice Department official outlined next steps: They would need permission to review the documents found at the offices of the Penn Biden Center for Diplomacy and Global Engagement, located just minutes from the Capitol and the White House. The letter, first revealed by The Washington Post this week, also indicated the need to search other locations where similar documents might be found.
The quiet cooperation continued for weeks, even up to the moment that Mr. Garland announced the appointment of a special counsel, Robert K. Hur, to investigate the matter last week. Moments before Mr. Garland spoke, Mr. Bauer called the department to inform them that another page of classified information had been found.
It was a classic legal strategy by Mr. Biden and his top aides — cooperate fully with investigators in the hopes of giving them no reason to suspect ill intent. But it laid bare a common challenge for people working in the West Wing: The advice offered by a president’s lawyers often does not make for the best public relations strategy.
Such tensions are common in politically charged investigations. Former President Bill Clinton’s political and communications advisers regularly lashed out at his lawyers for withholding information from them about Mr. Clinton’s relationship with Monica S. Lewinsky, the former White House intern. Lawyers for Mr. Trump often begged him not to tweet about the legal cases against him, for fear of antagonizing prosecutors.
In Mr. Biden’s case, advisers thought that the very act of publicizing the discovery of the documents would create a political furor that would make the appointment of a special counsel unavoidable. They reasoned that the discovery of documents long after leaving office was not that unusual and, as long as there was no intent to violate rules on classified papers, was generally handled without conflict, so the only thing that would create legal exposure would be drawing public attention to it.
As Mr. Bauer later said in a statement, the lawyers worried that anything said publicly could end up being wrong after further investigation.
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