Special Counsel Should Ask Biden Key Question, Former DOJ Official Says

Former Deputy Attorney General Rod Rosenstein revealed the key question he believes the special counsel appointed to investigate President Joe Biden's classified documents case should seek to answer.

The Department of Justice (DOJ) is looking into classified documents that were recently found inside Biden's Wilmington, Delaware, home, as well as his former office at the Penn Biden Center for Diplomacy and Global Engagement think tank in Washington, D.C.

The DOJ is probing whether the president mishandled the Obama-era documents when he served as vice president. Last Thursday, Attorney General Merrick Garland announced that a special counsel led by U.S. Attorney for the District of Maryland Robert K. Hur will investigate the case. The president has defended himself, however, saying that the documents were kept in a secure, locked garage at his home.

Rosenstein, who served in his DOJ position during the Trump administration, said in an interview with NBC News' Meet the Press Sunday morning that the key question Hur should focus on is whether Biden knew he was in possession of the classified documents.

"The key question—the threshold question here—is going to be, was President Biden aware of these classified documents," Rosenstein said, adding that Hur will also have to look into whether, as vice president, Biden had the authority to declassify the documents.

Rosenstein explained how he would conduct this investigation, which quickly became highly politicized, with many pundits drawing comparisons between a similar investigation faced by former President Donald Trump, who allegedly stored several documents at his Mar-a-Lago residence.

He said his first step would be to directly "go right to the source," and ask Biden whether or not he was aware that the documents were being kept at his private home and office.

Former federal prosecutor Shanlon Wu told Newsweek on Sunday that he disagreed with Rosenstein's approach, describing it as "clumsy."

He explained that Rosenstein should have noted there is a "real question" about whether a special counsel was even needed because it does not appear there was criminal action, even though there is a need to "get to the bottom" of how the documents ended up in Biden's office and home.

"Now that there is a criminal investigation, you certainly do not, as your first step, go right to the person who might be the subject or target and just ask 'Did you do it?'" Wu said. "That's incredibly naïve."

Instead, Wu said prosecutors should begin by interviewing people involved with the documents and who packed up his office before he vacated the White House, probing whoever would have brought the documents to the locations they were found in. He added that they should establish a chain of custody, and that it could be "fuzzy" because it was so long ago.

"With a criminal investigation you always start, sort of at the edges and move your way in," Wu said. "Particularly in a white collar investigation."

Wu also noted that Biden has already said he was unaware of the documents, and said that he's "not going to say something different, probably."

Former U.S. Attorney Neama Rahmani told Newsweek on Sunday that he agrees that Biden's knowledge of the classified documents is important in determining whether he violated federal laws because "mere negligent misplacement of the documents isn't enough for criminal liability."

"That is one of the reasons why the investigation of former President Trump may have a different result. Trump was informed by the National Archives that he had classified documents, and he reportedly refused to return them. That shows Trump's actual knowledge," Rahmani said in written remarks.

Amid growing pressure, with some Democrats now publicly supporting the special counsel investigation, the White House has defended Biden, saying he is "fully cooperating" with the investigation and that his attorneys promptly notified the National Archives and Records Administration (NARA) after the documents were discovered, but have offered little details on the investigation.

On Saturday, five more documents were found at Biden's home, after they initially found only one in his garage, sparking criticism from conservatives, who have defended Trump amid his investigation. Still, many legal experts have differentiated between the cases, noting that Trump refused to turn over documents while Biden has been more cooperative.

Newsweek reached out to the Department of Justice for comment.