Attorney General Merrick Garland has “several options” to investigate former Vice President Mike Pence’s improper retention of classified records, and former officials and legal experts tell Fox News Digital that he doesn’t was “not obligated” to appoint another special advocate.
Pence informed Congress on Tuesday that he discovered documents with classified marks in his home in Carmel, Indiana, on Jan. 16 when he was vice president.
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Pence notified the National Archives on January 18 of a small number of potentially classified documents found in two boxes. Two other boxes contained copies of vice presidential papers, and all were immediately placed in a safe, according to Pence’s team.
“Garland has several options,” Ty Cobb, a former White House special adviser in the Trump administration, told Fox News Digital when asked what the DOJ’s next steps might be. “But the normal course would be an initial investigation by the DOJ into whether the documents were: one, indeed classified and, if so, remain classified; and two, may have been ‘knowingly’ deleted with intent to keep them.”
“On the information currently available, unlike Biden and Trump, we don’t really know the answers to these questions yet,” 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 in an unprecedented raid. On November 18, Garland appointed former DOJ official Jack Smith as special counsel to investigate the matter.
At the time, Garland had already selected US Attorney John Lausch to conduct a review of classified documents discovered at the Penn Biden Center. In December, more classified documents were found at Biden’s home in Wilmington, Delaware.
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Garland has selected former U.S. Attorney Robert Hur as special counsel to investigate Biden’s poor retention of classified records. Hur is set to take over the DOJ investigation in Lausch.
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.
Cobb, however, told Fox News Digital that Garland “is not obligated to appoint another special counsel” to handle the Pence documents.
Cobb said that under applicable law, Garland “was also under no obligation to do so vis-à-vis Trump, although he had discretion to do so and exercised that discretion.” .
“There is no doubt, however, that he was obligated to appoint a special counsel for Biden,” Cobb said, noting that the reason is due to the “actual conflict of investigating his boss under the statute of the special advocate”.
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According to this law, the Attorney General will appoint a special advocate when he determines that a criminal investigation of a person or matter is warranted and that an investigation or prosecution by the Department of Justice would present a conflict of interest for the DOJ. The law also states that an attorney general can appoint a special advocate if it is in the public interest.
Cobb said that if Garland finds there is a possible violation of 18 USC 1924 with respect to Pence, “He can order the DOJ to continue to investigate, assign the matter to a US attorney’s office, or appoint a special advocate.”
Former Ambassador Norm Eisen, the former White House special adviser on ethics to former President Barack Obama, told Fox News Digital that he thinks Garland will choose another special adviser.
“I think it’s more likely than not that we end up with a special counsel assignment,” Eisen told Fox News Digital.
But Eisen told Fox News Digital it’s highly unlikely that Pence’s case will be taken up by Smith, the special counsel investigating the Mar-a-Lago documents.
“Even though these documents are from the Trump administration, I think if you gave them to Jack Smith, you would send a signal that, you know, this is of a proportional gravity to the Trump case, and it’s not is not the case,” Eisen said. said. “If Garland gives the Pence case to an existing special advocate, it would be to Hur because the Biden case seems much more comparable to the Pence case.”
Eisen added that the Biden case isn’t “very complicated,” but that it “seemed complicated because of the drip, drip” of records uncovered at Biden’s office and at his home.
Comparing Biden and Pence, Eisen said there was “everything to indicate it was accidental,” but he predicted Garland would take several weeks to figure out how he would handle the Pence case.
But former assistant U.S. attorney Andy McCarthy told Fox News Digital that “there’s no reason to have a special counsel.”
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“The mistake that was made here is that he didn’t need it for Trump,” McCarthy said. “The Trump investigation, Garland appointed a special counsel, but there was no basis for it.”
McCarthy said Garland ordered a special counsel for Trump because of the 2024 presidential campaign. McCarthy predicted Trump would have “accused Biden of using the criminal justice process against him.”
“There’s no conflict of interest in the Justice Department investigating Trump. They did it for two years before all of this happened,” McCarthy said.
Cobb said Garland has “greater discretion” for Trump and Pence “because the conflict is not real but could be perceived due to the possibility of them running against Biden.”
Eisen, however, defended Garland’s appointment of a Trump special counsel, citing Trump’s 2024 announcement.
“Donald Trump has declared himself a presidential candidate, which puts him in a position of adversity vis-à-vis the sitting president, who himself is very likely to run for president again,” Eisen said. . “So at a minimum there is the appearance or question of conflict and very extraordinary circumstances.”
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He added: “Garland did not want his partisan motives to be constantly questioned. The case is already politically charged, handing it over even to career officials.”
The Justice Department did not immediately respond to Fox News’ request for comment on how Garland plans to proceed.