Attorney General Merrick Garland has “multiple options” to pursue an investigation into former Vice President Mike Pence’s improper withholding of classified records, and former officials and legal experts told Fox News Digital that he is “not required” to establish another special counsel.
Pence informed Congress Tuesday that he discovered documents with classified markings at his Carmel, Indiana, home on Jan. 16 from his time as vice president.
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Pence informed the National Archives on January 18 of a small number of potentially classified documents found in two boxes. Two other boxes contained copies of the vice presidential documents, all of which were immediately locked away in a safe, according to Pence’s team.
Former Vice President Mike Pence acknowledged this week that he had some classified documents in his Indiana home.
(John Lamparski/File)
“Garland has multiple options,” Ty Cobb, a former White House special counsel under the Trump administration, told Fox News Digital when asked what the Justice Department’s next steps might be. “But the normal course would be an initial investigation by the Department of Justice into whether the documents were: one, actually classified and, if so, remain classified; and two, they may have been ‘knowingly’ removed with the intent to retain them. “.
“On the information currently available, unlike Biden and Trump, we still don’t really know the answers to those questions,” he said.
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The FBI seized classified records from former President Donald Trump’s Mar-a-Lago home in Florida last August during an unprecedented raid. On November 18, Garland appointed former Justice Department official Jack Smith as special counsel to investigate the matter.
Ty Cobb, former White House special counsel under the Trump administration
At the time, Garland had already tapped US Attorney John Lausch to conduct a review of the classified records that were discovered at the Penn Biden Center. In December, more classified records were found at Biden’s home in Wilmington, Delaware.
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Garland chose former federal prosecutor Robert Hur as special counsel to investigate Biden’s improper withholding of classified records. Hur is set to take over the Justice Department’s investigation of Lausch.
A special attorney was assigned to handle the Biden documents to avoid a conflict of interest.
(Anna Moneymaker/File)
Pence’s team said the decision to search the home and office of the former vice president of his political advocacy group, Advancing American Freedom, for classified documents came after initial revelations that Biden had classified records at the Penn Biden Center.
However, Cobb told Fox News Digital that Garland is “not required to appoint another special counsel” to handle the Pence documents.
Cobb said that under the applicable statute, Garland “was also not required to do so with Trump, although he had the discretion to do so and exercised that discretion.”
Former President Donald Trump
(Saul Loeb/AFP via Getty Images/File)
“However, there is no question that he was required to appoint special counsel for Biden,” Cobb said, noting that the reason stems from the “real conflict of investigating his boss under the special counsel statute.”
VICE PRESIDENT MIKE PENCE DISCOVERS CLASSIFIED DOCUMENTS IN AN INDIANA HOUSE
Under that statute, the attorney general will appoint special counsel when he or she determines that criminal investigation of a person or matter is warranted and that investigation or prosecution by the Department of Justice would present a conflict of interest to DOJ. The statute also says that an attorney general can appoint a special counsel if it is in the public interest.
US Attorney General Merrick Garland has options in dealing with former Vice President Mike Pence’s classified documents.
(Anna Moneymaker/Getty Images/File)
Cobb said that if Garland concludes there is a possible violation of 18 USC 1924 with respect to Pence, “he may direct the Department of Justice to continue to investigate, assign the matter to a federal prosecutor’s office, or appoint special counsel.”
Former ambassador Norm Eisen, a former White House special adviser on ethics to former President Barack Obama, told Fox News Digital that he believes Garland will pick another special adviser.
“I think most likely we will end up with a special counsel assignment,” Eisen told Fox News Digital.
But Eisen told Fox News Digital that Smith, the special prosecutor investigating the Mar-a-Lago documents, is highly unlikely to take up Pence’s case.
“Even if those documents are from the Trump administration, I think if I were to give them to Jack Smith, it would be sending a signal that, you know, it’s commensurate with the severity of the Trump issue, and it’s not.” Eisen said. saying. “If Garland gives the Pence case to any existing special counsel, it would be to Hur because the Biden case is much more like the Pence case.”
Eisen added that Biden’s case “isn’t very complicated” but “felt complicated because of the drip, drip, drip” of records that were discovered in Biden’s office and his home.
Norm Eisen, a former special ethics counselor to former President Obama, says a special prosecutor could be brought in to investigate Pence’s handling of classified records.
(Drew Angerer/Getty Images/File)
Comparing Biden and Pence, Eisen said there are “every indication that this was accidental” but predicted it would take several weeks for Garland to figure out how he will handle Pence’s case.
But former Assistant US Attorney Andy McCarthy told Fox News Digital that “there’s no reason to have special counsel.”
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“The mistake that was made here is that he didn’t need one for Trump,” McCarthy said. “The Trump investigation, Garland appointed special counsel, but there was no basis for that.”
McCarthy said that Garland ordered special counsel for Trump because of the 2024 presidential campaign. McCarthy predicted that Trump would have “accused Biden of using the criminal justice process against him.”
Former Assistant US Attorney Andy McCarthy
“There is no conflict of interest in the Department of Justice investigating Trump. They were doing it for two years before all this happened,” McCarthy said.
Cobb said Garland had “greater discretion” for Trump and Pence “because the conflict is not real, but it could be perceived because of the possibility of them running against Biden.”
However, Eisen defended Garland’s appointment of special counsel to Trump, citing Trump’s 2024 announcement.
“Donald Trump has declared himself a candidate for president, so that puts him in an adversarial position toward the incumbent president, who is overwhelmingly likely to run for the presidency himself again,” Eisen said. “Then, at the very least, there is the appearance or question of conflict and very extraordinary circumstances.”
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He added: “Garland did not want the constant questioning of his partisan motives. The case is already politically charged, even turning it over to career officials.”
The Justice Department did not immediately respond to Fox News’ request for comment on how Garland plans to proceed.
