Garland has considered the appointment of a special counsel to oversee the investigation as he did in the case of documents seized from former President Donald Trump’s Mar-a-Lago home, according to the person, who wasn’t authorized to discuss non-public information.Play Video

Garland plans to make a statement at 1:15 p.m. Thursday, according to a release. The attorney general’s office did not specify the topic of his expected remarks.

Republicans have been calling for such an appointment after documents with classification markings were found in at least two locations that Biden used after he served as vice president and before he became president. Garland had already asked Chicago US Attorney John Lausch to review the situation. Lausch was appointed to his position by Trump.

On Monday, the White House confirmed that some classified documents were found at Biden’s think tank, the Penn Biden Center, an office he used after his vice presidency ended. On Thursday, the White House said Biden’s aides found another batch of classified documents from his time as vice president at his home in Wilmington, Delaware.

“We are fully cooperating with the National Archives and the Department of Justice in a process to ensure that any Obama-Biden Administration records are appropriately in possession of the Archives,” special White House counsel Richard Sauber said in a statement. 

Biden and his allies have been confronting tough questions about the difference in the treatment of Trump, whose Florida home was raided in August after the FBI got a court to authorize a search warrant. Biden allies say the situations are different and say they immediately turned the records over to the National Archives after they were found.

Former Attorney General Alberto Gonzales was the latest Republican to call for the appointment of a special counsel to investigate whether Biden mishandled classified documents. 

“It’s not my place to second guess or try to put any kind of pressure on Merrick Garland,” Gonzales, who served under Republican President George W. Bush, said in an interview on CNN Thursday. “Based upon what I know, in the interest of justice, I think a special counsel is likely to be appointed.”

Garland and the Justice Department faced accusations of being hypocritical and inconsistent in applying the law because Special Counsel Jack Smith was appointed in November to investigate Trump’s handling of classified documents after he left office. Smith is also looking at Trump and his allies’ efforts to efforts to overturn the 2020 presidential election.

‘Hurt the Country’

The top Republican on the Senate Judiciary Committee, Senator Lindsey Graham of South Carolina, told reporters Wednesday that “it will hurt the country” if a special counsel isn’t appointed for the Biden documents case.

“Garland, if you’re listening, if you thought it was necessary to appoint a special counsel regarding President Trump, then you need to do the exact same thing regarding President Biden when it comes to handling classified information,” Graham said.

There are several stark differences between the two cases, however. For example, Trump didn’t return his documents after being repeatedly asked by the National Archives to do so, forcing a months-long standoff that led to a subpoena and Federal Bureau of Investigation search of Florida resort. Trump has claimed he should be able to keep the materials and they are personal because he declassified them in his thoughts before he left office.

Biden told reporters this week he was surprised to learn that classified documents were found at a private office he previously used, indicating that he had no knowledge they were there. Biden’s lawyers said they also voluntarily and immediately contacted the National Archives to return the documents after they were found.

A special counsel’s appointment and operations are governed by a special set of federal regulations. 

Although they’re not subject to day-to-day oversight by Garland or any other senior official, they can be disciplined or removed by the attorney general “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause,” including violation of departmental policies. They have authority to make outside hires and detail current Justice Department employees.

The attorney general can overrule a special counsel’s decision to make a particular investigative or prosecutorial move, but they have to notify Congress if that happens.

Lausch was appointed by Trump as US Attorney for the Northern District of Illinois in 2017 and has been kept on by the Biden administration. 

(Updates with more on special counsel position.)

–With assistance from Zoe Tillman and Anthony Lin