Silent strategy backfired on Biden
Plan to differ from Trump on files can’t avert special counsel
WASHINGTON — The decision by President Joe Biden and his top advisers to keep the discovery of classified documents secret from the public and even most of the White House staff
for 68 days was driven by what turned out to be a futile hope that the incident could be quietly disposed of without broader implications for Biden or his presidency.
The handful of advisers who were aware of the initial discovery on Nov. 2 — six days before
the midterm elections — gambled that without going public, they could convince the Justice Department that the matter was little more than a minor, goodfaith mistake, unlike former President Donald Trump’s hoarding of
documents at his Florida estate.
In fact, the Biden strategy was profoundly influenced by the Trump case, in which the former president refused to turn over all the classified documents he had taken, even after being subpoenaed. The goal for the Biden team, according to people familiar with the internal deliberations who spoke on condition of anonymity, was to win the trust of Justice Department investigators and demonstrate that the president and his team were cooperating fully. In other words, they would head off any serious legal repercussions by doing exactly the opposite of what the Biden lawyers had seen the Trump legal team do.
In the short term, at least, the bet seems to have backfired. Biden’s silence while cooperating with investigators did not forestall the appointment of a special counsel, as his aides had hoped, but still resulted in a public uproar once it became clear that the White House had hidden the situation from the public for more than two months. Biden’s advisers still hope that the trust they believe they have engendered with investigators by not litigating the matter in public may yet pay off in the long run, by convincing the special counsel that nothing nefarious took place.
In the meantime, though, the strategy has left Biden open to withering criticism for concealing the discovery for so long. And now, after a productive year that had seemed to leave the president in a strong position to announce a
reelection campaign, the handling of the documents case has eroded his capacity to claim the high road against Trump, while also raising questions about his team’s ability to navigate Republican attacks from Capitol Hill.
On Thursday, during a trip to California to tour storm damage, Biden tried to brush off questions about whether he regretted not divulging earlier that classified material had been found.
“We are fully cooperating, looking forward to getting this resolved quickly,” he said. “I think you’re going to find there’s nothing there. I have no regrets. I’m following what the lawyers have told me they want me to do . ... There’s no
‘there’ there.”
The discussions on how to deal with the matter, at least at the start, were confined to the husband-andwife pair of Bob Bauer, the president’s top personal attorney, and Anita Dunn, a White House senior adviser; Mike Donilon, the president’s longtime confidant and speechwriter; Biden’s sister, Valerie Biden Owens; Stuart Delery, the White House counsel; and Richard Sauber, a White House lawyer overseeing the response to investigations, according to people familiar with the situation.
Eventually, the circle widened slightly, but the matter remained closely held, and the idea of preemptively making the discoveries
public does not seem to have been seriously considered.
Still, officials have said there was no hesitation when it came to informing officials at the National Archives and Records Administration, which is responsible for securing such documents. The president’s legal responsibility was clear, and his lawyers had no intention of fighting with the archivists the way Trump and his advisers had done for months after leaving office in 2021.
Informing the public was a different matter, with different risks. Biden had long promised that he would never politicize the Justice Department like his predecessor had done repeatedly. In recent days, White House officials have said they have resisted the urge to provide more information about the documents because they do not want to look like they are putting their thumb on the scale in an investigation centered on the president and his top aides.
The choice to keep silent for so long exacerbated the political damage when the news finally leaked out Jan. 9. The days that followed, with a series of rolling disclosures and misstatements by the president’s public relations team, cemented the impression that Biden had not been forthcoming.
Yet, since the Biden documents were found last fall, there has been no lack of private communication between the White House and the Justice Department.
Starting Nov. 10, just one day after Attorney General Merrick Garland assigned a Trump-appointed U.S. attorney to look into the matter, the president’s counselors were in “regular contact,” as Bauer said in a statement, with their counterparts at the Justice Department.
The quiet cooperation continued for weeks, even up to the moment Garland announced the appointment of a special counsel, Robert Hur, to investigate the matter last week.
It was a classic legal strategy by Biden and his top aides — cooperate fully with investigators in the hopes of giving them no reason to suspect ill intent. But it laid bare a common challenge for people working in the West Wing: The advice offered by a president’s lawyers often does not make for the best public relations strategy.