Opinion: Why Biden’s documents call for a special counsel

Editor’s Note: Norman Eisen served as counsel to House Democrats in the first Trump impeachment and as White House ethics czar and ambassador to the Czech Republic in the Obama administration. The views expressed in this commentary are his own. View more opinion on CNN.

CNN
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We will all need to be patient now that former Maryland US attorney Robert Hur has been appointed by US Attorney General Merrick Garland as the special counsel in charge of the investigation into the classified documents found at President Joe Biden’s home and private office from his time as vice president.

But giving Hur the time to dig into the legitimate questions he must ask does not mean we should compare Biden’s legal exposure to that of Donald Trump.

Based on what we know now, Biden is unlikely ever to face charges, whereas Trump is at high risk because of his obstructive conduct and other factors absent from the Biden case. The cases have special counsels and classified documents in common — but little else.

Hur, who was nominated by then-President Trump for the US attorney role in Maryland in 2018, will now attempt to determine how the batches of classified documents got to Biden’s home in Wilmington, Delaware and to his private office in Washington, DC; who was involved; and who may have seen them.

He will seek to make sure that there are no more anywhere else on Biden’s personal property (a bone of contention in the Trump investigation) and liaise as necessary with national security officials to assess the risk to national security. And he undoubtedly will look at the logistics of the search; for example, if the first batch of documents was discovered in November 2022, why the review that unearthed the new documents was not completed until this Wednesday.

Those are all the same basic questions that apply to the Trump situation. But that doesn’t mean that the answers are likely to be the same — at all. I worked on document handling issues in government. As ambassador, that included my overseeing hundreds of people constantly handling or being in proximity to classified documents. Accidents are common, and so far everything indicates that is what we likely have here.

All that presents the biggest single difference from the Trump case. With Biden…