WASHINGTON—The Justice Department considered having FBI agents monitor a search by President Biden’s lawyers for classified documents at his homes but decided against it, both to avoid complicating later stages of the investigation and because Mr. Biden’s attorneys had quickly turned over a first batch and were cooperating, according to people familiar with the matter.
Instead, the two sides agreed that Mr. Biden’s personal attorneys would inspect the homes, notify the Justice Department as soon as they identified any other potentially classified records, and arrange for law-enforcement authorities to take them.
Those deliberations, which haven’t previously been reported, shed new light on how the Biden team’s efforts to cooperate with investigators have thus far helped it avoid more aggressive actions by law enforcement.
In the week since news reports first surfaced about the documents, the incident has drawn parallels to the discovery of a much larger number of documents at former President Donald Trump’s Mar-a-Lago home in Florida, which federal agents obtained a warrant to search in August after more than a year of negotiations between Mr. Trump’s lawyers, the National Archives and the Justice Department and after Mr. Trump’s lawyers said all documents had been returned.
Mr. Trump’s supporters have accused the Justice Department of a double standard in treatment; Mr. Biden’s supporters have pointed to the president’s legal team’s cooperation and swift moves to inform the Justice Department of the documents’ discovery as a key difference. Mr. Biden has said he doesn’t know what the documents are or how they wound up at his office at the Penn Biden Center or his Delaware home. Secretary of State Antony Blinken, who was director of the Washington think tank from 2017 to 2019, told reporters on Tuesday that he was unaware that government documents had been stored there.
The discussions and the Justice Department’s willingness to let the Biden lawyers do the searches unsupervised also suggest federal investigators are girding for a monthslong inquiry that could stretch well into Mr. Biden’s third year in office.
One reason not to involve the FBI at an early stage: That way the Justice Department would preserve the ability to take a tougher line, including executing a future search warrant, if negotiations ever turned hostile, current and former law-enforcement officials said.
Representatives of the FBI and Justice Department declined to comment. In a call to reporters about the investigation, White House spokesman Ian Sams said the president and his team were cooperating fully with the special counsel review “so that it can proceed swiftly and thoroughly.”
The White House revealed on two separate days last week that documents had been located at the president’s Delaware residence, as well as those found at a garage there in December. Part of the reason the new documents were revealed separately is that Mr. Biden’s personal attorneys don’t have security clearances to handle classified documents and had to set aside any material that could qualify as such. Richard Sauber, special counsel to Mr. Biden, who has that clearance, accompanied Justice Department personnel to retrieve documents, when they discovered additional pages with classification markings.
Attorney General Merrick Garland last week assigned a former top prosecutor in the Trump administration, Robert Hur, to serve as special counsel investigating the discovery of the documents in the locales associated with Mr. Biden. Justice Department officials were concerned that an FBI presence as the Biden team hunted for documents could complicate investigators’ ability to execute search warrants or subpoena documents as the investigation proceeds, some of the people said, in a sign that investigators are considering the possibility of a grand jury investigation into the matter.
Mr. Hur is expected to begin his job as special counsel by the end of the month, after he winds down his work as a defense lawyer at the law firm Gibson Dunn, people familiar with his appointment said.
Soon after the initial discovery in November, Mr. Garland tasked the Trump-appointed U.S. attorney in Chicago, John Lausch, with reviewing the documents, with an eye toward determining whether a special counsel should be appointed.
Mr. Lausch told Mr. Garland on Jan. 5 that he thought a special counsel was warranted given the many unanswered questions about the documents, and Mr. Garland quickly agreed, the people said.
Mr. Hur is expected to grapple with legally and politically thorny considerations that could be reminiscent of those from the last special counsel related to a sitting president, potentially including whether to pursue in-person testimony from Mr. Biden. During the 2017-19 special counsel inquiry led by Robert Mueller into Russia’s interference in the 2016 campaign and any links between that effort and the Trump campaign, investigators tried for more than a year to interview then-President Trump before ultimately settling for written testimony.
Mr. Sams declined to say whether Mr. Biden would sit for an interview with the special counsel if asked.
Legal experts said an open-book strategy could help shorten Mr. Hur’s inquiry and keep it from dragging out over Mr. Biden’s presidency.
“My goal would be to get everybody interviewed by Robert Hur as quickly as possible—not throw up roadblocks, not assert privileges, and get this thing over with,” said Neil Eggleston, who served as White House counsel in the Obama administration.
The Justice Department investigation into the Biden documents comes as another special counsel is already deep into a parallel inquiry into the classified documents at Mr. Trump’s Florida home.
The FBI in August executed a search warrant at the property, believing more such documents remained there based on witness interviews and security-camera footage. They removed dozens of boxes containing additional documents, many of which were mixed in with clothing and news clippings. Prosecutors later disclosed they were investigating whether anyone sought to obstruct their inquiry, in addition to whether anyone should be prosecuted for mishandling the documents. Mr. Trump has called the Justice Department’s moves a witch hunt and said he did nothing wrong.
The Justice Department has sought to keep the two inquiries separate by assigning them to different teams, according to people familiar with the matter. The Biden White House has highlighted differences between the two inquiries, stressing in particular how their cooperative stance compares to the Trump team’s resistance to turn over records to the National Archives after repeated requests. Mr. Trump’s legal team later clashed with the Justice Department over the appointment of an outside arbiter, known as a special master, to review documents seized from Mar-a-Lago.
Yet the Biden team’s bumpy rollout of its discoveries—it only confirmed the document discoveries after news reports and has offered few new details—complicates its attempt to draw a hard distinction between Mr. Biden’s actions and those of Mr. Trump, said John Fishwick, who served as the U.S. attorney for the Western District of Virginia during the Obama administration.
“He is the sitting president, there’s no reason for him to hold back anything about this,” Mr. Fishwick said. “It makes it harder to say it’s apples and oranges, and it undercuts the argument that you were different.”
—Sabrina Siddiqui contributed to this article.
Write to Aruna Viswanatha at aruna.viswanatha@wsj.com, Sadie Gurman at sadie.gurman@wsj.com and C. Ryan Barber at ryan.barber@wsj.com
120
