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Brian: It's The Brian Lehrer Show on WNYC. Good morning, everyone. You know that the new Republican majority House of Representatives is launching investigations into President Biden's actions, and those of his son Hunter, everybody knows that by now, I think, but it was Biden's own attorney general who made an announcement yesterday about the discovery of classified documents among those President Biden had kept from when he was vice president under Barack Obama. Here's Attorney General Merrick Garland.

Attorney General Merrick Garland: Earlier today, I signed an order appointing Robert Hur a special counsel for the matter I've just described. The document authorizes him to investigate whether any person or entity violated the law in connection with this matter. The special counsel will not be subjected to the day-to-day supervision of any official of the department, but he must comply with the regulations, procedures, and policies of the department.

Brian: Merrick Garland. Now comes the obvious question of how similar or how different is the Biden classified documents story to the Donald Trump one. We'll also talk about some of the GOP-led House investigations already getting started. I'm joined by Jonathan Lemire, host of Way Too Early, 5:00 AM Eastern on MSNBC. He's Politico's White House bureau chief and author of The Big Lie: Election Chaos, Political Opportunism, and the State of American Politics After 2020. Hey, Jonathan. Happy New Year. Welcome back to WNYC.

Jonathan: Brian, good morning. Always glad to be here.

Brian: Can you first do the basics of what we know here because I think it's vague still to many listeners? Walk us through what we know about what documents President Biden had, and when they were reported.

Jonathan: I think it'll be important to do some comparisons with the Trump case, we can certainly get into that, as well as the politics of the whole matter which are different than the legality. Let's start with, as you say, the specifics of this. Here is the timeline. On November 2nd, just a couple of days before the midterms, a staffer who was packing up in office the president used to use in Washington, D.C., UPenn Biden Center, after he left the vice presidency before he became president, he kept an office there, was packing it up because he no longer uses it and found some classified documents.

We're told about less than a dozen of various classifications. Those documents were turned up, and immediately, by the book, turned over to National Archives. Department of Justice was alerted because, of course, there are all sorts of rules pertaining to how classified information is handled. Now, we didn't learn about that until this week. The story broke earlier this week that these documents had been discovered, and then a few days later, we learned that a second batch had also been discovered in late December, December 20th, I believe, at the President's home in Wilmington, Delaware, in the garage, kept in a box there, locked garage.

Then one final document was discovered just this week also inside the home there in Delaware. That's what we know so far is that there's only been a dozen or two documents turned up. We do not know precisely what they're about, but it was enough that this matter had been under the investigation of a US attorney who then recommended to the Attorney General Merrick Garland that a special counsel be appointed. That's what happened yesterday.

Brian: Why is this happening now? I imagine some listeners might think, "Oh, because of the President Trump classified documents scandal, the Biden people felt compelled to go through their possessions or Biden's possessions with a fine tooth comb and unearth anything that might be there because they had a suspicion that something might be there because maybe this happens normally, to some degree, even though the Trump situation is anything, but normal." Why did this happen now?

Jonathan: Well, Democrats wish it had happened a little sooner. I think that's what I've been hearing from some grumbling this week. The Mar-a-Lago case when police and the FBI searched that property, that of course, was August. A lot of Democrats have said to me in the last 48 hours, right then and there, why didn't people in President Biden's world say, "You know what, just to be safe, why don't we check too?" Seems like they didn't. There was no search then.

The documents initially at that Penn Biden Center in D.C. that were found in early November were clearly found by happenstance, that someone just simply clean packing up that office discovered them and flagged them. Again, that's the right procedure. They did that correctly. It's one of the many differences between this case and the one with Donald Trump. Now, after those documents were discovered in November, that's what triggered the search.

It was then when the Biden attorney said, "Okay, we should do a check of his other properties to make sure there are no other documents." Now, questions still persist how it took six or seven weeks for these documents to turn up in the garage of his Wilmington home, but that's what led to that search.

Brian: Does the Republican control of the House have anything to do with why we're learning about this at all? If Democrats had won the House, and there weren't all these Republican-on-Democrat investigations about to begin, would this never have even been a public thing?

Jonathan: It's unclear whether they're connected or not. This is the White House that has been bracing for months for the onslaught of investigations that are now about to arrive because Republicans do have control of the House. They can form the committees. They have the power of subpoena. There's going to be all sorts of topics that they're going to be looking into. It's not sure, though, that they're connected here to this.

It also remains unclear why the White House didn't publicize this when they initially discovered it. They didn't. We only learned about the documents from media reports. There was a CBS story, I believe, on Monday that revealed the batch discovery in November, and then reporting this week from NBC and other places about the second batch. There's some questions for a White House that has prided itself in transparency, some questions as to why they weren't more forthcoming about the discovery of the documents.

Now, again, there is also limits to perhaps to what we will say because lawyers are advising them. It's an ongoing investigation. You don't want to be too transparent. There's only so much you can do. That's all well and good to be clear. That said, there was some uncomfortable moments this week with Karine Jean-Pierre, the White House Press Secretary, and the President himself when asked about these documents earlier in the week. After the first batch was discovered, they were both asked, "Well, are there more," and both hemmed and hawed around it even though they well knew there had been more that had been turned up, they just hadn't been reported yet.

Brian: Attorney General Garland appointed a special counsel, guy named Robert Hur. Why a special counsel? Does that suggest that some laws have been broken here?

Jonathan: That's normally what it does mean, yes. We've been talking to legal analysts on my show, on Morning Joe last few days who all say the same thing. If it rises to a certain level, that's when a special counsel is triggered. Usually, that level is, well, we think there has been a crime committed. Having said that, this is a President of the United States. Things are a little different.

They want to just have the complete appearance of going through everything by the book, got to be overly careful, and therefore appoint a special counsel. It does not mean that a crime was committed. Certainly, inherently, some rules were broken. These classified documents should not have been at the president's house. They shouldn't have been in his office. They should only be in secure facilities where classified documents are authorized to be. That is undeniable. No one disputes that.

That said, that doesn't mean there's going to be a crime here either. If they were, indeed, inadvertently packed up, if they were thrown in a box when a president, then as vice president left office in January of 2017, and weren't discovered until now, these things happen. Procedure is if a classified document simply turns up, and you return it, and say, "Hey, I shouldn't have this. You should take this back," usually, there's no criminality involved. There's no charges involved. There's no penalty or punishment.

Then again, that's what's so different from the Trump case, who for more than a year fought the National Archives in terms of returning those documents, and seemingly willfully intended, that's a key phrase here, willful intent, to hang on to them and to mislead the federal government about the documents. There's no sense that the Biden or his team have done that.

Brian: Listeners, we can take your questions, your comments about the Biden classified documents story, comparisons to the Trump classified documents story. We will get into the Republican House beginning to launch investigations of Hunter Biden and how that might connect to President Biden, or anything else you might want to ask Jonathan Lemire that you think Jonathan Lemire might be able to answer for you, but you didn't wake up early enough to see him on MSNBC, 212-433-WNYC, 212-433-9692, or tweet @BrianLehrer.

Let's talk about the differences because the FBI for one thing had to go to Mar-a-Lago to retrieve classified documents that had not been turned over by the Trump people after months of trying to get them back for the archives from former President Trump. Some Republicans called that search a raid. President Biden's lawyers, by contrast, are the ones notifying the archives and the Justice Department about these. Those are obvious differences. How else are the two cases different?

Jonathan: There are several key differences. Let's start with the sheer volume of documents. At this point, President Biden's team says they have concluded their search. They haven't found anything else. If that the case, we're talking a dozen or two turned up in the possession of President Biden, while we're talking hundreds turned up in the possession of Donald Trump at Mar-a-Lago, that's first. Secondly, you just hit it, when the Biden team discovered the documents, they immediately turned over the papers to the National Archives, alert the department justice, that's procedure, that's what we're supposed to do. Donald Trump and his team didn't do that.

Moreover, the Trump team spent more than a year and a half litigating this with the National Archives refusing to give the documents back eventually, they turned over 15 boxes worth only there the National Archives to go, "Wait a minute, we know there's still a lot more," and that's what triggered that search in August. To this day, there are real questions about whether Trump and Brexit and his attorneys obstructed justice there, obstructed the procedure of returning those documents.

That's probably the reason one of the things that the Special Counsel looking into Trump has to examine and again, at this point in the game, no one is suggesting that President Biden or his team did anything of the sort, they weren't obstructing anything. Those are the key differences, and I would also though add, in terms of investigations, this one for President Biden, this investigation is only a few days old.

The one into Donald Trump is months and months, months old, likely further along down that line and of course, the other fundamental difference about the special counsels, the one investigating President Biden is simply looking at these documents. The Special Counsel that is investigating former President Trump documents, yes, but also the January 6 case and efforts to overturn the 2020 election, so a much broader group.

Brian: Let's take a phone call. Kathy in Manhattan, you're on WNYC with Jonathan Lemire. Hi, Kathy.

Kathy.: Hi, how are you? I have a question. When someone of this level, a president in any presidency checks out, I'm assuming checks out these documents or receives these documents, what's the chain of custody? I feel like no one's talking about a larger picture, which is how these government documents are handled and what the safety features are that keep them from being misplaced, or held back. How does that work, and why is no one really addressing that? To me, that's the larger conversation than any individual president, whether it's Donald Trump, or whether it's Joe Biden.

Brian: Great question, Jonathan, how much can we even answer that question?

Jonathan: Well, it certainly seemed that the federal government at the moment has a retention problem with classified documents, they just keep turning up everywhere. It varies agency to agency in terms of there is a chain of command, there is a chain of custody I should say for these documents, they're logged [unintelligible 00:12:51] who hasn't received them, et cetera.

It is a little different with the president of United States, he, of course, has the highest possible clearance, he is certainly can carry documents around for with him if he needs to, from the Oval Office to another office in the White House, even potentially, as we know, Donald Trump would do, bringing back to the residence, that's not unusual. Sometimes presidents get briefed from their living room on the other side of the building, but the key is, of course, they should eventually be returned to the right place, and it is a gray area.

There's only a handful of people in each administration who do that with a president, but certainly, what we do know, we learned a lot of this because of the Trump matter. When a presidency ends, those documents need to be turned over, they are logged, there is a sense as to who has watched. When a staffer, when the President himself or the chief of staff or even a more junior aide, is packing up their office and has classified material, that is supposed to be separated from the non-classified stuff.

It does seem like there are mistakes made. The Biden team is saying this is an error, we're looking into what had happened but our belief is that whoever was packing up the Vice President's office in 2017 put stuff in the wrong file, and that the President, now President hadn't looked at it ever since. With Trump, it's a little murkier because of the sheer volume of documents, and at least some reporting that Trump himself was involved in saying, "Hey, I want to bring that stuff down with me to Mar-a-Lago.

Brian: That's a key difference that I think it's worth lingering on for a minute, it sounds like from what we know so far, that maybe Biden himself didn't even know that he had classified documents that went to his office or his home after his vice presidency. That it was a packing error on the part of people on his staff, whereas Trump for reasons that I think we still don't know, decided, like, hey, let's take a whole bunch of these classified documents back to Mar-a-Lago. Did I state that factually, and if so, that's really different?

Jonathan: It is really different. It seems what we know so far, we should, of course, put a caveat out there, we're still learning this, particularly the Biden cases only a few days old, but that is what they're saying. These are inadvertently packed, the president the other day, publicly said he didn't even know what documents were in there, he didn't know what was classified or not. That's what he is saying, it is different for Trump. We do know that he had a say in at least some of that material coming down to Mar-a-Lago, the Kim Jong-Hoon love letters are the ones that most people know about where he used to show them off in the Oval Office, even to people who shouldn't have, that includes me.

I remember once being in the Oval Office, interviewing Donald Trump with a couple of colleagues, and he's like, "You guys want to see this? I shouldn't show it to you but I did anyway." It was this letter from Kim Jong-Hoon, a classified document, I don't have the kind of clearance, Brian but this shows how hazard he treated classified material. We know that he himself signaled at least some of that, "Hey, I want to bring that with me," and then we also know that the end of the Trump administration so chaotic after January 6th, they of course, were refusing to concede, they weren't packing up their offices until the very end.

There's also a COVID outbreak in the White House, right then in January, so it was a really what is always-- the transition is always a washed process but for Trump, it was particularly rushed and haphazard. In addition to the ones that he purposely said, "Hey, I want those," it may have been also things just thrown in boxes that shouldn't have been.

Brian: I'm going to start the high-security clearance for Jonathan Lemire's movement-

Jonathan: Please.

Brian: -but in the meantime, we will talk to PJ in Manhattan. PJ are on WNYC. Hi.

PJ: Yes. Good morning, Brian, and good morning. Mr. Lemire. I have a question about one thing that you didn't mention that the Biden documents were discovered before the previous election, and if they announced them at that time, maybe the election would have had a different outcome because then people would have gone after Democrats and after Biden.

Brian: Jonathan, theory.

Jonathan: That is something that some Republicans have really harped on this week, they're noting the timing of these documents at the Penn Center were found a few days before the midterms, and had they been publicly revealed, that would have potentially been a damaging storyline for Biden and the Democrats who then went on to have a good midterm.

That is a reasonable point to make, it's a fair question to ask, that's one that the White House is going to have to deal with, officials has suggested at this point, that it was simply a matter of timing, they discovered these documents, they turn them over, National Archives had them for a few days, and our justice was alerted and the bureaucratic steps took some days but that still doesn't answer the question as to why we're only finding about this now, and why only through BD reports.

Brian: Here's a question about the special counsel for the Biden classified documents, who Attorney General Garland appointed yesterday. His name is Robert Hur and a listener tweets, "Is it by chance or by choice that Garland designed this to a Trump appointee?" Is that accurate, first of all? Was he a Trump appointee to something?

Jonathan: Yes, to the US Attorney's Office in Maryland he was, he'd already been in the federal government but he was appointed as the special attorney there by Donald Trump. I think there is an effort here, people we've talked to in the last 24 hours or not even 24 hours yet suggested that went into Merrick Garland's thinking. Look, these cases are just a reminder about the whole thing, obviously, their legal cases, and you would think whether a charge is made, and then down the road, potentially a conviction, it's going to be done on the merits the facts of the case but this is Washington, D.C., we have a president and a former president, politics are going to be involved and therefore yes, there is a sense of the party of justice would want to make sure it doesn't appear that they're taking it easy on Joe Biden.

That they don't want there to be any appearance of bias. Merrick Garland, of course, was appointed for attorney general by President Biden. To try to ward off any claims that he is showing favor to President Biden, you put in somewhere like this, a well-respected attorney to be sure, a secial counsel, but also someone who was appointed by Donald Trump, a Republican in office. I think that is absolutely a part of the thinking here and on that note, Brian, as a final thought on this part, is this idea that in the long run, it might even benefit, frankly, the Biden presidency, that they get a special counsel here.

Potentially even a tough Special Counsel, because that way, and if they're saying we did nothing wrong, and they were exonerated, that claim will be more readily believed by the American public, it'll be easier to put this behind them rather than just having this appearance, it was swept under the rug, they can say it was fully investigated. Look, we're fine. We came out on the other side. In the short term though, it's going to be tough. No presidency wants to have a special counsel going through their stuff.

Brian: A special counsel can start looking at one thing and find other things. Isn't that what happened in the case of President Clinton where they were looking at a land deal in Arkansas after he became president and they wound up with Monica Lewinsky?

Jonathan: That is precisely right. It was Whitewater was the case in Arkansas, and Kenneth Starr, the special counsel had exhausted that avenue investigation as well as a few others. He didn't get to Lewinsky for quite some time, but eventually, he got there, and we all know what happened next.

Brian: Now, Kentucky Congressman James Comer, and folks, this is a name you should know, James Comer, Republican congressman from Kentucky. He's the new chair of the House Oversight Committee and he's really a hawk on these kinds of things. I think he's going to be in the news a lot, James Comer, and he isn't deterred by the appointment of a special counsel. He issued a statement that his committee's investigation into the president's handling of the documents will continue and refer to "The swamp's efforts to hide the information from the American people". Is it unusual for the FBI and the Justice Department to investigate without alerting the public?

Jonathan: Not necessarily. At a certain point, there would've been a trigger notification but not always and not initially. That's not the case and things get looked at for a little while and then if it's not followed there's no follow-through then the general public doesn't always need to know about it. I think to your broader point we should all Democrats, the White House, and the American public should buckle up for the slew of investigations that are coming.

Certainly, this is a new one. The idea of the classified documents, this wasn't on the Republican's radar a week ago but plenty of other things were. Some of your listeners might feel are more legitimate than others. The withdrawal from Afghanistan, the handling of the southern border, the COVID origins, and the way the Biden administration has handled the pandemic, as well as things in the President's own family like Hunter Biden and his business dealings.

You're right to signal out Congressman Comer. He and his colleagues have made it clear now armed with the power of the subpoena that it'll be open season on the Biden administration.

Brian: By the way, my producer points out that it was a different law that was in effect in the Clinton era and technically though this same may sound like Bureau Courtes to a lot of listeners, it was an independent council. That was the terminology at the time, different from a special council, which is what we have now. The independent council had more leeway to follow breadcrumbs and wind up from [unintelligible 00:22:53] with Monica Lewinsky. Maybe they don't have that much latitude under the current special counsel law. Just saying that that might not be as potentially brought an investigation now, no matter what they turn up but I don't know. You think that's the case?

Jonathan: It's possible that there were efforts after Canstar to reform the idea of an independent council because many Democrats felt that he had gone up too far afield of his jurisdiction. Yes, I believe that's correct that I think the powers are a little narrower, but again, that's not going to change the headache this is going to provide for the White House. Brian, we should also hit on just one more, a political point here too that we haven't gotten to yet.

It's an open question. Does this discovery is the fact that President Biden now have a special counsel of his own and has to deal with this matter of these classified documents and mishandling of them, is that going to complicate in any way the decision to charge Donald Trump for mishandling classified documents? We can't stress enough. The two cases though have similarities are very different. Even though it'll be a legal decision, it's made in a political environment and that is what everyone in DC is buzzing about now.

Brian: I think David in Brooklyn has a thought or a question about the politics of it. David, you're on WNYC with Jonathan Lemire. Hi.

David: Hi Brian. Thanks. This is such a special gift to the Republicans and as much, and I agree that it's totally different, but the more you explain how totally different it is, the more people are going to say, oh yes, yes, yes very different. There was a timeline question I had that I think Jonathan brought up. If they knew about the second batch, why didn't they say it when they talked about the first batch? That's one thing. I'm totally a never-Trumper but what would happen if they found out that some of these documents were related to the Hunter Biden investigations?

Brian: There's a hypothetical Jonathan on either of his thoughts.

Jonathan: Yes. I'll take them all real quick. First of all, yes it's unclear about Hunter Biden. Certainly, we could predict though, the headlines wouldn't be good for President Biden if that turned out to be the case. We simply don't know yet what those documents are about. It is a very fair question to ask why the White House after being confronted with the revelation of the first batch of documents didn't just come out and tell us about the second.

That was a point of real contention in the White House briefing room yesterday during last Press Secretary Karine Jean Pierre's daily briefing. I suspect it will be again today because the White House hasn't really had a very good answer for that. To your overall point, this does muddy the waters. I've talked to a number of political strategists in the last couple of days who said that exact same thing.

The cases are very different. What Trump is being accused of is far more serious than anything anyone is claiming Joe Biden is but to quote the political act cliche, if you're explaining, you're losing. I think for a lot of American people who didn't really follow the ins and outs of the classified documents over the summer with Mar-a-Lago, this is just going to further confuse them. Like, oh, everybody does it. It's not that big of a deal. I think there's also this sense that even if what Trump did was criminal and he very well may be charged or indicted for his mishandling of these classified documents that politically that charge would not be nearly as damaging were there to eventually be an indictment about January 6th or his efforts to overturn the 2020 election.

Those are things the American people and American voters care about, understand much more about than documents at his Florida golf course.

Brian: By the way, I hate the fact that that cliche is true. If you're explaining, you're losing, if people have legitimate questions for politicians or whoever that they want them to explain, let them explain. They should explain. There's nothing wrong with explaining yourself. If you have a reasonable explanation for something, that's good. Unfortunately, because that political dictum is so often true, people rarely do explain themselves. Instead, they go on the attack against whoever's asking the question. It just makes me sad because it's good to just have rational conversations about things and hear explanations on that.

Jonathan: Our politics would be the much better place if people did more explaining. You're right, instead, the options are to either go on the attack, or to just deny or omit, and that often causes more trouble down the road anyway.

Brian: All right, we've got three minutes left, and Congressman Comer's Oversight Committee, and it's a good segue from the last caller also has started an investigation into the Biden families' business dealings. The way they frame that it's beyond Hunter Biden as an individual and to some kind of GOP theory of the case here about a larger Biden family question. What are they getting at?

Jonathan: Yes, this is not new. This is something we've heard since 2019 when Joe Biden announced his candidacy for President time around. He's been deemed the big guy in GOP nomenclature and there's this theory that he has been profiting off of Hunter Biden's business dealing so that Joe Biden's brother might actually also be involved. There has been no evidence of that. There's been terrific reporting including, I'll point to a front-page story in New York Times yesterday about Hunter Biden.

Where it does seem that Hunter tried to profit off of his father's name when he was vice president. There is no indication whatsoever that Joe Biden was involved in that. It's unclear whether Hunter Biden did anything illegal. There's nothing illegal with getting a good job because of who your dad is. If there were then there'd be plenty of people in DC and New York who would be in some real apparel. In fact, legal analysts that I've spoken to say that there is Hunter Biden may in fact have some criminal vulnerability on some tax charges perhaps.

That might be something that's another case that's eventually we're going to hear from the Department of Justice in Merrick Garland about at down the road. None of that will matter to the politics of this House committee. There will go through all of it, they will haul Hunter Biden up before Congress. It will be an ugly process even if it ends up being mostly just political theater.

Brian: Just some speculation about where it'll be two years from now at the next election or really a year plus the 2024 election if they come up with, yes, there's something there about Hunter Biden but there's nothing there about Joe Biden. If they come up with, yes, there were some mistakes that were made in how things were packed documents-wise for Joe Biden but Trump purpose with out classified documents to rub it in everybody's face, they're going to be so different that this hawkish investigation mode that the Republicans are entering in could really backfire on them. I know you got to go, just going to leave that there as a bit of speculation about where we might be in a year and a half from now. Do you want a 10-second thought on that?

Jonathan: Yes, happy to. I think the White House is that mindset that they do look. No White House is happy to have to deal with investigations, whether it's from a special counsel, and in this case, from Republican-controlled House of Representatives, that's not going to be fun. It's going to be a distraction. That said, they do think the Republicans are going to overreach, and they're going to care about in these probes things that the American public doesn't care about.

The cases could be very different, and it will be seen as a waste of time and political grandstanding. They believe the White House does, the Republicans are going to overreach, and then it'll backfire into 2024.

Brian: We will see. Jonathan Lemire hosted Way Too Early on MSNBC. He's Politico's White House bureau chief and Author of the book The Big Lie: Election Chaos, Political Opportunism, and the State of American Politics After 2020. Jonathan, thanks, as always.

Jonathan: Always a pleasure. Happy to do it again soon.

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