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DOJ Appoints Another Special Counsel
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DOJ Appoints Another Special Counsel

Former prosecutor Robert Hur will head the investigation into Biden’s classified documents case.

Happy Tuesday! Scientists at the University of Geneva recently found that high-frequency lasers beamed into the sky can divert lightning strikes, helping protect airports, power stations, and other critical infrastructure projects from harm.

So it’s the Swiss who control the weather.

Quick Hits: Today’s Top Stories

  • China’s National Bureau of Statistics reported this morning the country’s gross domestic product grew just 3 percent in 2022, down from its 8.1 percent rate of GDP growth in 2021. The data, if accurate, would make 2022 China’s second-weakest year of economic growth since 1976, behind only 2020.
  • Ukrainian rescue crews reported Monday the death toll from this weekend’s strike on a Dnipro apartment building rose to at least 40, making it one of the deadliest Russian attacks on Ukrainian civilians since the Kremlin launched its invasion last year. Russia and Belarus launched joint military exercises near Ukraine on Monday in a move experts see as a precursor to a renewed effort by Russia to regain battlefield momentum.
  • At least 68 people were killed on Sunday after a plane operated by Yeti Airlines crashed in central Nepal en route to Pokhara from Kathmandu, marking the third-deadliest plane crash in Nepalese history and the country’s deadliest since 1992.
  • Police on Monday arrested a former New Mexico state House candidate for allegedly plotting with and paying men to carry out shootings in the Albuquerque homes of four state and local Democratic lawmakers. Authorities said Solomon Peña, a Republican, had claimed his defeat by incumbent Democrat Miguel P. Garcia was the result of election fraud.

Yet Another Special Counsel

Robert Hur speaks at a news conference. (Photo by Zach Gibson/Getty Images)

In recent years, we’ve been treated to a parade of special counsels appointed to head one investigation or another. First, of course, there was Robert Mueller, tapped to investigate possible collusion between Russia and the Trump campaign—followed closely by John Durham, tasked with examining how the Trump-Russia investigation got going in the first place. More recently, Jack Smith was chosen to oversee two separate investigations into former President Donald Trump: over his possible interference in the transfer of power after he lost the 2020 presidential election, and his failure to return classified documents upon leaving office.

If this growing club ever grabs some beers—maybe to bond over the lurch from relatively unknown attorney to referee in a high-stakes game of political football—they’ll need to add a new name to the invite list: Robert Hur, the seasoned prosecutor now responsible for investigating President Joe Biden’s own scandal involving misplaced classified material.

The last week or so has brought with it a stream of revelations about classified documents that didn’t quite make it to the National Archives after Biden’s tenure as vice president. It started last Monday, when CBS News reported that Biden aides on November 2 had found documents at the Penn Biden Center for Diplomacy and Global Engagement, a think tank in Washington Biden used as an office after leaving the Naval Observatory. Things have only gotten worse for the president from there: Another batch of classified documents were found in the garage of his home in Wilmington, Delaware on December 20, and six more pages with classified markings turned up last week in a room adjacent to the garage. At least, according to Biden’s personal attorney Bob Bauer, no such records have been discovered (yet) at Biden’s Rehoboth Beach residence?

To date, there’s no public evidence Biden’s team resisted returning any classified documents to proper authorities—once they were discovered—as former President Donald Trump is alleged to have done, leading White House officials to accuse Republicans of hypocrisy over their reluctance to investigate Trump and enthusiasm to examine Biden. But there’s still a lot we don’t know about this story: whether the Biden papers’ lax handling created national security vulnerabilities, for example, or who had access to them while they sat unsecured for six years, as Biden’s team said yesterday he doesn’t keep a visitors log for his Wilmington home. We also don’t know how the documents ended up unsecured, a question likely at the top of Hur’s to-do list. 

According to Attorney General Merrick Garland, the decision to appoint Hur came after John Lausch—the Trump-appointed U.S. attorney in Illinois who Garland had tasked back in November with investigating the situation—argued the facts of the case warranted the special counsel treatment. “Lausch and his team of prosecutors and agents have conducted this initial investigation with professionalism and speed,” Garland said. “I am grateful to them.”

Hur will take it from here. Now on leave as a partner at the firm Gibson, Dunn, & Crutcher, he previously clerked for the late Supreme Court Chief Justice William Rehnquist and served in the Department of Justice—including a role keeping tabs on Mueller’s investigation. He also served as U.S. attorney in Maryland, earning a reputation for investigating corruption among Democratic officials in Baltimore and at the state house.

Hur has also prosecuted cases involving the mishandling of classified documents, writing in 2019 that a nine-year sentence for a National Security Agency contractor convicted of stashing millions of pages of classified materials “should serve as a warning that we will find and prosecute government employees and contractors who flagrantly violate their duty to protect classified materials.” After Garland’s announcement, Hur released a statement promising to “follow the facts swiftly and thoroughly, without fear or favor.” He’ll still ultimately answer to Garland in his new role as special counsel, but he’ll have much more autonomy than typical U.S. attorneys. And if Garland decides to overrule Hur’s prosecution decisions, the Justice Department is required by law to inform Congress.

Some Republican lawmakers have criticized the DOJ’s decision to appoint a special counsel. “We don’t think there needs to be a special prosecutor, but I think Congress has a role to look,” Speaker Kevin McCarthy said Thursday, later wondering on Fox News why “an independent person in the FBI that has no ties to anything” couldn’t have been tapped. Hur’s disqualification, McCarthy argued, is his experience as the DOJ’s “point person” on the Mueller probe.

That said, Republicans would have likely raised a much bigger stink if Garland hadn’t tapped a special counsel, deciding instead to oversee the investigation into Biden himself. “I think it shows a sense of fairness to have a special counsel for both [Biden and Trump],” GOP Rep. Don Bacon of Nebraska told ABC News on Sunday. “Granted the situations are different, but they’re both about classified information being in areas that’s illegal and the improper handling of highly classified information.”

Administration officials have insisted the DOJ investigation limits their disclosures, but they’ve also had to clarify their accounting of events several times in recent days. Although White House Press Secretary Karine Jean-Pierre told reporters Thursday to “assume” the Wilmington home search had been completed, for example, White House counsel Richard Sauber revealed Saturday that he’d found more documents Thursday evening—and that the search had merely been “suspended” Wednesday pending the arrival of people with necessary security clearance. Biden has repeatedly said he takes the security of classified information seriously, but shot back with a flippant response when pressed by reporters on classified documents found near his prized 1967 Corvette Stingray. “My Corvette is in a locked garage,” he said. “It’s not like it’s sitting out in the street.”

The “locked garage” defense echoes the “locked storage room” claims we got from Team Trump last year—and is just as legally insufficient. Though Biden had a secure facility set up at his Wilmington home to review classified information during his vice presidency, it was decommissioned while he was out of office, and all official documents from the Obama White House should have been given to the National Archives.

The documents debacle is particularly embarrassing for Biden because he’s pitched himself as the experienced, mature alternative to Trump’s “irresponsible” handling of classified information. But the Biden administration maintains Hur’s investigation won’t turn up anything worth prosecuting. “We are confident that a thorough review will show that these documents were inadvertently misplaced, and the President and his lawyers acted promptly upon discovery of this mistake,” Sauber said in a Thursday statement

In the meantime, lawmakers are still hoping to conduct some of their own oversight. Republican Rep. James Comer of Kentucky—chair of the House Oversight Committee—has demanded a thorough accounting of the documents found, a list of people involved in the search for more files, a list of searched locations, and all communications about the files between the White House, DOJ, and the National Archives. Rep. Jim Jordan—chair of the House Judiciary Committee—called on Garland to send documents and communications about Hur’s appointment as special counsel.

Democrats are predictably less suspicious of both Biden’s motives and Garland’s actions, but even some intensely partisan members of the president’s party have expressed concern about the national security implications of the story. “I’d like to know what these documents were,” Rep. Adam Schiff of California told ABC News over the weekend. “I’d like to know what the [intelligence community’s] assessment is, whether there was any risk of exposure, and what the harm would be—and whether any mitigation needs to be done.”

Worth Your Time

  • For Politico, Rich Lowry spoke to Rep. Chip Roy about the speakership battle earlier this month and why the Texas lawmaker feels better about the future of the House. “One way to look at last week’s fight is that it was the most intense phase of an ongoing negotiation,” Lowry writes. “The effort to get the GOP leadership to agree to changes began last summer, and the proponents didn’t make a secret of what they were after. A July 2022 memo from the House Freedom Caucus outlined the thrust of the items that would eventually be adopted, and a Dec. 8 letter from Roy and a handful of others to their House colleagues, forecast the final deal almost exactly, from allowing one member to make a motion to vacate the chair to a special committee to investigate ‘weaponized government.’ Roy says that there is, of course, back-room dealing in Congress all the time—members trading votes for committee assignments and the like — but this, from his perspective, wasn’t that: ‘We were putting out in very public view, ‘Here’s the stuff that we think we need.’ And then we were fighting over it.’”
  • In a piece for the Financial Times, Henry Mance profiles Tyler Cowen, the libertarian economist “on a mission” to boost the world’s efficiency. “Tyler Cowen has only drunk coffee twice in his life,” Mance writes. “He only drinks tea if someone offers it. He doesn’t touch alcohol. ‘Alcohol is bad for everyone’s productivity.’ Instead Cowen’s drug of choice is information. He isn’t just an addict—he’s a peddler, a kingpin. Through his blogs, podcasts and books, he spreads big thoughts and highbrow trivia. He is among the most eclectic economists. He champions markets and big business. He insists that artificial intelligence, starting with chatbots such as ChatGPT, is about to change the world. But he also writes about restaurants, films and books—because he enjoys them, and because he’s convinced that culture shapes markets (and vice versa). ‘People should collect more information about music, about economics, about books. So I try to show them how I do that.’”
  • There’s been a lot of consternation over artificial intelligence technologies and what they mean for schooling, but Kevin Roose thinks chatbots like ChatGPT have enormous potential as educational tools. “Students are using [ChatGPT] to write their assignments, passing off A.I.-generated essays and problem sets as their own,” he writes in the New York Times. But the technology is only going to get better in the coming years, and teachers can’t simply pretend their students won’t be using it. Instead, Roose writes, they should embrace it. “[A chatbot] could write personalized lesson plans for each student (‘explain Newton’s laws of motion to a visual-spatial learner’) and generate ideas for classroom activities (‘write a script for a ‘Friends’ episode that takes place at the Constitutional Convention’),” he notes. “It could serve as an after-hours tutor (‘explain the Doppler effect, using language an eighth grader could understand’) or a debate sparring partner (‘convince me that animal testing should be banned’). It could be used as a starting point for in-class exercises, or a tool for English language learners to improve their basic writing skills.”

Baby Yoda is Back

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Toeing the Company Line

  • For more about Robert Hur’s appointment as special counsel, be sure to check out today’s episode of Advisory Opinions. Plus, David and Sarah discuss whether collegiality is declining among Supreme Court justices, check in on the state of religious liberty, dive into Fairfax county’s “war on merit” controversy, and provide a simple definition of academic freedom.
  • In this week’s edition of Wanderland (🔒), Kevin looks at the strange and disheartening persistence of antisemitism in today’s world. “For the psychotic Jew-hater and the conspiracy nut, the upside of a political discourse dominated by tropes and memes and social-media exchanges is that nobody does take five minutes to think about it,” he writes. Plus: Why no one actually follows The Science and the difference between real and nominal economic indicators.
  • On the site today, Harvest breaks down what (if anything) voters should expect this year in terms of immigration reform and Brian Reidl considers how Republicans could use their House majority to take measured, concrete steps toward fiscal responsibility.

Let Us Know

How has your opinion of Biden’s classified documents scandal changed over the course of the past week, if at all?

Declan Garvey is the executive editor at the Dispatch and is based in Washington, D.C. Prior to joining the company in 2019, he worked in public affairs at Hamilton Place Strategies and market research at Echelon Insights. When Declan is not assigning and editing pieces, he is probably watching a Cubs game, listening to podcasts on 3x speed, or trying a new recipe with his wife.

Esther Eaton is a former deputy editor of The Morning Dispatch.