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AG Garland Appoints Special Counsel In Biden Docs Probe; Who Is Rob Hur? Aired 1:30-2p ET

Aired January 12, 2023 - 13:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[13:30:00]

PHIL MATTINGLY, CNN CHIEF WHITE HOUSE CORRESPONDENT: There was also an additional document that was reported to the Justice Department, I think, either yesterday or today as well.

So the fact that the White House put out a very detailed statement related to one set of documents, even though they had known for several weeks that there was another set of documents out there, which we ended up finding out and reporting on last night.

I think gives a window into the fact that there is, perhaps at this moment, as we listen to the attorney general, as we know a special counsel has been appointed, and as we listen to what the White House has said over the course of the last several days.

There's a lot of questions about how this was approached and how they walked through things to the extent they could.

And look, full disclosure, they made very clear, they thought there were limitations into what they could say, how they could say it.

The counsel's office very protective and very cognizant of the fact that they did not want to end up in a place where a special counsel had been appointed.

But the result of that has been a steady drip of information where the president has had to make two different statements about two different sets of documents.

The White House counsel has made two different statements about two different sets of documents. And they knew about both sets before the first set of documents were reported on.

So I think trying to put all that together right now. I think it underscores the fact that while there has been an intensive review over the course of the last several months in the wake of finding that first batch of documents, where this goes next.

Because throughout the course of this week, as we've been reporting on it, according to the attorney general, the recommendation from John Lausch, the U.S. attorney, came last week that a special counsel was necessary, or in his view, was recommended.

So this process has very much been in the works, moving forward, and seems to have been a little bit ahead of where the White House has been not just the last three or four days, but several weeks now -- Bianna?

BIANNA GOLODRYGA, CNN HOST: We heard from the attorney general that he was briefed by John Lausch, who recommended that a special counsel be appointed on January 5th.

I want to bring in Renato Mariotti.

Because you know John Lausch. You worked with him previously.

As noted, both John Lausch and now Rob Hur, the special prosecutor who has been tapped to investigate this, are both Trump appointees. The attorney general highlighting that this underscores the independence and accountability of the DOJ.

But talk about the significance and perhaps the time now, this past week, that the attorney general has spent in focusing specifically on who to appoint.

RENATO MARIOTTI, CNN LEGAL ANALYST: Yes, I think it's interesting. I actually was surprised to hear that John wasn't the one who was tapped for special counsel. It looks like he's going to be leaving the department.

One thing I will say, as somebody who worked with him for a long time, although he was a Trump appointee, I consider him to be nonpartisan, or bipartisan, very much a career DOJ employee, somebody who is well respected by Democrats here in Illinois.

Both the Democratic Senators came out and asked Biden not to remove him when there was an original indication that might happen.

And I think the fact that he recommended a special counsel suggests to me that he thinks there's something here that merits investigation.

Not that he thinks there's going to be charges necessarily, but he thinks that there are still some matters that need to be investigated here.

And I suspect that there will be continued interviews regarding -- obviously, there was a document that was supposedly just found yesterday at another location.

GOLODRYGA: I'm glad, Renato -- if I can just pick up quickly with something you mentioned, I thought I heard that as well from the attorney general.

That John Lausch said that he would be leaving and that's perhaps why, am I correct to assume, why Rob Hur was then assigned this case? Could we have seen John Lausch stay on?

MARIOTTI: Yes, that's right. I will say -- I'll confess to the viewers that, an hour ago, I heard some murmuring that there was going to be a special counsel and I assumed it was going to be John Lausch. The fact that the attorney general said he's leaving the DOJ is news

to me, as somebody who knows him well and is part of the former U.S. attorney in Chicago community that would know these things pretty early on. So this is news.

But the fact of the matter is that I think the attorney general went out of his way both in selecting John, but also in selecting Mr. Hur.

Selecting people who were appointed by the former president, President Trump, who served in his administration, so there will be an appearance to the public that you have somebody who is independent making those judgments.

GOLODRYGA: Let's bring in Jamie Gangel

Because, Jamie, I'm just curious to get your thoughts and what you're hearing from your sources about how big of an issue this is becoming, and quite quickly for the Biden administration right now.

JAMIE GANGEL, CNN SPECIAL CORRESPONDENT: There's no question there's political fallout here. We have said over and over this past week that this is very different from the Trump Mar-a-Lago documents, though we don't know what all of these classified documents are and the potential security issues.

There's one word that you can say over and over again, which is cooperation. From day one, they have cooperated.

[13:34:57]

Just as a side note, sort of a footnote to what Merrick Garland said, he mentioned that yet another document, an additional document was identified today. And they were informed about that document. It sounds as if that was also coming from the Biden home.

But we're now sort of dealing with three groups, the one that was initially found in the office, the second group that was identified, I think, December 20th.

And then it appears they're continuing to look for documents because something else was mentioned today.

But there's no question politically that Republicans, Donald Trump, they are going to use the fact that there's this special counsel, that it wasn't just limited to those first 10 documents, for political attacks.

GOLODRYGA: Yes, and we heard now that the first batch of documents had been found at the Penn Biden Center and that was in early November.

Now the other two investigations were conducted at the Biden Wilmington and Rehoboth Beach, Delaware residences. It appears that nothing was discovered thus far at the Rehoboth Beach, Delaware residence. But it was in the Wilmington home, in the garage, the second batch was found. Paula Reid, if I can get you to weigh in on the impact and the

narrative that we have to back-to-back presidents both being investigated.

Again, apples and oranges in how it's been handled on their end. But for storing classified documents or having classified documents in their possession.

And now having two special prosecutors assigned to investigate these cases.

PAULA REID, CNN SENIOR LEGAL AFFAIRS CORRESPONDENT: It's notable because the Justice Department doesn't have to farm out tough cases. Tough cases is the business they're in. That's what they do.

And here you do have what the attorney general described as extraordinary circumstances that do warrant appointing a special counsel, both in the Biden situation and also in the situation for former President Trump.

Not only the possible mishandling of classified information down at Mar-a-Lago, but also the way the former president and his team handled that, potentially obstruction of justice that's being looked at there as well.

But that's not the only place where the attorney general has sort of found independent people to handle politically fraught investigations.

For the past seven or so years, the Justice Department has really been mired in these politically very contentious investigations and cases and questions about its impartiality.

So you see that the U.S. attorney in Delaware, someone who was appointed under President Trump, he is still handling the investigation into President Biden's son, Hunter.

You see, in this case, the first step was to find another Trump- appointed attorney in Chicago to conduct the initial review.

You see Merrick Garland, the consummate judge, following the facts but also being mindful of the reputation and the perception of the Justice Department.

And wanting to make sure, at least from an optics standpoint, that these investigations appear to be handled fairly by people who don't have some sort of political bias against those under investigation.

So it's a really interesting pattern. And the fact he was able to find another Trump-appointed U.S. attorney who was willing to take this on, that's really significant.

And of course, he found Jack Smith, who has been in Europe for quite some time. Even the former president's lawyer said, you know what, I'm glad he found someone who hasn't been in the Beltway for the last five or six years.

So a credit to the attorney general for being able to find so many people to take on these challenging cases.

GOLODRYGA: And from all accounts, Jack Smith quickly jumped in on this case and was quickly read in as well. Now we have Rob Hur catching up to speed here.

Evan, is it too soon, especially given everything that we know, and we're being told from the president and the administration that they are cooperating, they are the ones who proactively reached out to the DOJ.

Again, there's a lot more to learn here. But is there any liability at this point that the current president could face?

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: Yes, there absolutely is.

In the order that the attorney general signed to appoint Rob Hur, they talk about the possible crime that would be prosecuted or investigated here.

And it talks about the unauthorized -- the possible unauthorized removal and retention of classified documents and other records. And that's the crime that is being investigated here.

The question is, was this willful, was this something that the president or anyone else may have done on purpose? That is the pursuit here by the FBI and Rob Hur, the new special counsel, who is looking into this.

The White House has made clear in all of their statements that the president, President Biden, was not aware that these documents were there. He says that he doesn't know what is in them.

[13:40:10]

We only know from Jamie's reporting over the last couple of days that, at least in the initial set of documents, there were some very highly sensitive TS/SCI, which is sensitive information, included in those initial 10 documents.

So, again, there's potential liability here. It is, at least at this point, it does not appear that there's any obstruction being investigated.

But of course, that is something that is going to have to be looked at in the future.

But that's what the difference is between this investigation, Bianna, and the investigation of former President Trump, which from the beginning included the question of obstruction.

GOLODRYGA: And, John, I think it's important and relevant that we highlight we're talking about the time lapse between when the DOJ was notified and when the public was notified of these classified documents. To go back and think to when we first heard about President Trump's

issue, and that was when his home was searched after that search warrant was signed off by a judge and obviously implemented initially by Merrick Garland and the DOJ.

There had been over a year and a half where, behind the scenes, privately, there had been back and forth between Trump's camp and the National Archives about getting those documents back.

Is that a surprise to you, given the lapse we saw in that case?

JOHN MILLER, CNN CHIEF LAW ENFORCEMENT & INTELLIGENCE ANALYST: Not really. The difference is between the National Archives, the FBI, the Department of Justice trying to get cooperation from Donald Trump and his team to be able to inspect documents, get them back, versus basically a document survey that was going on where they immediately reported that to the Department of Justice is important.

But as Evan said, when you look at the special counsel's mandate and there's potential crimes here about the storage and possession of classified documents, it's further complicated by the idea --

And remember the Mueller report where, in the first pages, it said Office of Legal Counsel, guidance from the Department of Justice says a sitting president can't be charged with a crime or indicted or brought to trial.

So that is going to throw a little bit of confusion into, if they find criminality, then what? That would mean that the president would have to be impeached and then charged with a crime after the fact and so on.

But they have to go through this process because this is now going to be a fact-finding mission. And those facts are going to have to be reported.

When you look at Rob Hur, the person they put in this job, this is someone who served as a career Justice Department official, as an assistant U.S. attorney prosecuting cases.

Was appointed as a political appointee at the highest levels of the Trump Justice Department and to two presidentially appointed jobs.

And a guy who, interestingly, served as the special assistant to Christopher Wray back when he was in the Bush administration as the head of the Criminal Division in the Justice Department. So --

GOLODRYGA: Small circle. Yes.

MILLER: It's a small circle.

And as Evan pointed out, the decision to appoint a special counsel, something we've been wrangling with on television for a couple of days, appears to have been made on January 5th.

And the question of who that would be, and finding a person with the exact resume that it would make it very hard to accuse them of bias or leaning, is what took the time in between.

GOLODRYGA: Yes, the few days in between.

Finally, if I could get to you, Andy McCabe, and get your thoughts as to whether this impacts Jack Smith's investigation into former President Trump and his handling of classified documents.

ANDREW MCCABE, CNN SENIOR LAW ENFORCEMENT ANALYST: Yes, in a word, Bianna, it does not.

I think it's absolutely essential that DOJ approach the initiation of these investigations in the same way, with the same level of seriousness, and with the appointment of special counsels, which I think were appropriate in both cases.

But from that point on, these cases are entirely different. They should proceed where the facts take them. And ultimately, each special counsel is going to have to make a recommendation to the A.G. based on the facts and the law.

And as we know, we've talked about it many times, the facts, just the ones that we know so far in these cases, are very, very different.

The course of dealing with the government, what happened when the Trump team discovered that they had classified documents versus how the Biden team handled it.

There's many more facts that we need to understand about the Biden situation. But these cases are very different from this point forward. And either one could really end up with a declination or a recommendation to go forward.

[13:45:01]

GOLODRYGA: Again, the big headline for our viewers, who may just be joining us, the attorney general just appointing a special counsel into an investigation into how the current President Biden has handled classified documents that were found at his residence.

Stay with us. We'll continue to follow this story.

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[13:49:58]

GOLODRYGA: We are back now continuing our breaking news coverage of U.S. Attorney General Merrick Garland appointing a special prosecutor to investigate President Biden's handling of classified documents.

I want to bring our panel back in.

Jamie Gangel, we heard in our previous block about the impeccable credentials in what should be a nonpartisan investigation led by Robert Hur. He had been appointed by former President Trump. He had worked with Chris Wray and Rod Rosenstein.

Yet, what do you expect to hear from Republicans in particular but Democrats as well in response to this news?

GANGEL: I think it's going to be very hard to criticize his reputation, his credentials. He was a clerk for Justice Rehnquist. I am told by sources in the justice community that he has impeccable conservative credentials.

So I think that Merrick Garland has picked someone whose impartiality in all of this is not going to be questioned. As Andy McCabe said earlier, just going through his resume.

One other thing I think it's worth talking about, we have seen documents mishandled with both Donald Trump and now Joe Biden. But I went back to talk to sources who have worked with past presidents, vice presidents, also sources who are familiar with the National Archives. This doesn't happen a lot.

It is true that, from time to time, high-level officials will find a folder in the back of a closet. There are incidents where a widow of a high-level official found something. There's a story where a university was given papers for a high-level official and then going through them years later, they found documents.

But if you go back, Bush 41, this did not happen. Bush 43, no. Clinton, no. Obama, no. Dick Cheney, no.

So there are honest mistakes. There are situations like what happened with Donald Trump where it seems that he wanted to hold on to some things. He thought everything was his.

But this is not usual for presidents and vice presidents.

GOLODRYGA: Andy McCabe, if I could get you to respond to what you just heard from Jamie Gangel, because that is a question many are asking, how common is this of presidents to remove classified documents, knowingly or unknowingly, and storing them, has it happened before.

And also to the question of the impartiality and the respect that members of both parties have for a prosecutor like Rob Hur because I'm just a bit skeptical given that we heard the same accolades in the initial early days of Bob Mueller being assigned to investigate the former president until that all changed.

MCCABE: Sure. So to your first question, I think Jamie is absolutely right. I think this is, until very recently, these problems with the retention of classified material or sensitive material by presidents is fairly rare.

I would suggest that the reason for that is because presidential administrations and vice-presidential administrations have large, competent professional staffs. This is largely a staff issue.

I would be willing to bet a lot of money that Joe Biden didn't sit there and decide what got packed up out of his vice-presidential office before he left.

So you have highly trained competent staff, professional staff around, usually these problems don't happen.

That's why you do see it more among high-level officials who don't have that sort of expansive staff. That's how mistakes can happen, documents can end up in places where you didn't intend them to be.

With respect to how much Rob Hur's strong reputation will protect him and insulate him from criticism, I suspect that will last maybe until the end of today.

Your reference to Robert Mueller is the perfect comparison. He was the -- imminently acceptable by both sides, candidate for the special counsel position, and that lasted just long enough until the Republicans decided it was advantageous to criticize him.

I would point out criticize him baselessly. And that's when he started receiving a lot of intense fire.

You can very easily see the same thing from Rob Hur if the politicians decide that it's advantageous to do so.

GOLODRYGA: Evan, in our final few seconds, if you could remind our viewers, what these classified documents pertain to that were found?

PEREZ: Bianna, the importance here is, from what we know, from the important reporting that Jamie has done, the first 10 documents included things that were at the TS/SCI level, things that had to do with briefing papers that were prepared for then-Vice President Biden.

[13:55:12]

By comparison, Trump had hundreds of documents that were labelled at the highest classification levels, and that's the reason why there's been such a concern about those documents.

The problem for Joe Biden and for this investigation is that even -- even though these documents are from the Obama/Biden years, right, that information may still be classified because of the sensitivity and the sources and methods in which they were collected.

So that's the issue here which is being looked into.

GOLODRYGA: All right, Evan Perez and panel, thank you so much for joining me this hour.

For viewers at home, stay with us for the breaking news. We'll continue right after this quick break.

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