WASHINGTON — Those last days were a blur of phone calls, meetings, farewell events and visits to Ukraine and Switzerland. As he wrapped up his tenure as vice president in January 2017, Joseph R. Biden Jr. was packing in as much as he could.
The question now is, what else was being packed? And by whom? And why? And where was it going?
The appointment of a special counsel has focused new attention on Mr. Biden’s frenetic final stretch in the White House after eight years as the No. 2 to President Barack Obama. Somehow, a small number of classified documents would go not to the archives, where they belonged, but to Mr. Biden’s home in Wilmington, Del., and, later, a private office in Washington, where they did not.
Robert K. Hur, who was named special counsel by Attorney General Merrick B. Garland on Thursday to investigate the mishandling of those papers, will undoubtedly labor to reconstruct the events of that winter, when members of the outgoing vice president’s staff were rushing to pack up their files, turn in their badges, work with the incoming team and find new jobs for themselves. The White House has provided no explanation yet for how the documents wound up in the hands of Mr. Biden as a private citizen.
For Mr. Biden, January 2017 was a time of uncertainty. For the first time in 44 years, he would be out of government, no longer a senator, no longer a vice president, no longer at the center of the action, no longer with an obvious future ahead. He would write a book, sure, and start a think tank. Months would pass before he would resolve to run for president again. And in that period of transition, something went wrong.
Mr. Biden said this past week that “I was surprised to learn that there are any government records that were taken to that office.” No evidence has emerged publicly to indicate that he knew they had been taken improperly. If the vice president did not personally remove them when he left the White House, Mr. Hur will no doubt try to determine which aides were involved in packing his papers.
Even before Mr. Hur’s appointment, Justice Department officials had interviewed several Biden associates, according to people informed about the inquiry. Among them was Kathy Chung, who was Mr. Biden’s executive assistant while he was vice president and now works for Defense Secretary Lloyd J. Austin III, NBC News reported.
Ms. Chung was said to have helped pack up Mr. Biden’s office in January 2017, but there is no public indication whether she had handled the documents in question or knew that anything she was putting away for transfer was classified.
Understand the Biden Documents Case
The discovery at two locations of classified documents from President Biden’s time as vice president has prompted the Justice Department to scrutinize the situation.
- In Washington: Attorney General Merrick B. Garland’s appointment of a special counsel to investigate the situation drew a mixed reception from Republicans, who had hoped to spearhead the effort themselves.
- Two Cases in the Spotlight: Two presidents — Mr. Biden and former President Donald J. Trump — are now under investigation by special prosecutors for how they’ve handled classified documents. Here is how their cases compare.
- Presidents and Their Prosecutors: Since the dark days of Watergate, every president but one has faced such an investigator looking into them or their associates.
The White House has declined to answer questions beyond bare-bones statements issued over the last week. “We have been transparent in the last couple of days,” Karine Jean-Pierre, the White House press secretary, told reporters on Friday.
But the White House had not been transparent in the last couple of months. The first classified documents were found on Nov. 2 and a second batch on Dec. 20. After the initial discovery, the White House promptly notified the National Archives and Records Administration, which then informed the Justice Department. But the White House kept the discoveries secret from the public until this past week, confirming them only after they were reported by the news media.
Lawyers had privately resisted going public on the grounds that they wanted to wait until a more complete picture emerged and did not want to alienate the Justice Department by seeming to litigate the matter in the media.
As Mr. Biden was preparing to leave the public sector, his vice-presidential chief of staff, Steven J. Ricchetti, and other advisers helped him put together a blueprint for a post-White House life to channel his energies and efforts.
Among them was a memoir that Mr. Biden published in November 2017 called “Promise Me, Dad,” referring to his son Beau Biden, who had died of brain cancer in 2015 and reportedly urged his father to stay in the public arena. Many former presidents and vice presidents seek to use government documents through a regular process to assemble their memoirs, but it is not clear whether the papers found in recent months were part of book research.
Another project that Mr. Biden took on after the White House was the creation of a think tank associated with the University of Pennsylvania called the Penn Biden Center for Diplomacy and Global Engagement, which opened in February 2018. It was at his office at the Washington headquarters of the Penn Biden Center that the first batch of classified documents was found last November, more than three years after Mr. Biden had formally stepped down from the center to run for president.
No information has emerged explaining where those files were stored in the year between Mr. Biden’s departure from the vice presidency and the opening of the think tank, at what point they had arrived at the new offices or why they were still there years later. But a subsequent search by his lawyers turned up another batch of classified papers in the garage of Mr. Biden’s home in Wilmington, Del. None were found at his vacation house in Rehoboth Beach, Del.
The Obama-Biden White House had established a regular process for handling secret papers and the White House Office of Records Management worked closely with the archives to ensure that files were transferred appropriately.
Anything the president saw was archived. Classified papers would be returned and put in the National Security Council system or, if involving domestic policy, in the Office of Records Management system. The White House staff secretary’s office was charged with ensuring that documents were properly managed.
The system, similar to that used by other White Houses, was hardly foolproof even before President Donald J. Trump came along and openly flouted the rules, regularly ripping up government documents rather than preserving them as required by law. Mr. Trump is under investigation for hoarding sensitive documents at his Mar-a-Lago estate and failing to return all of them, even after being subpoenaed. Unlike Mr. Biden, Mr. Trump has insisted he had the right to the classified documents, even claiming to have declassified them, although there is no evidence of that. He has been so resistant that authorities are considering charging him with obstruction of justice.
Even in more standard administrations, classified documents have been mixed with unclassified files. Some White House veterans said that when such papers are discovered after leaving office, they are supposed to be returned immediately to the archives. Such incidents do not necessarily result in criminal charges if authorities do not establish an intent to circumvent the rules.
Mr. Trump’s last days in office were especially chaotic because he refused to concede the election, but even in the best of circumstances, the final days inside a White House can be disorganized and difficult. There are far fewer staff members in the West Wing than usual because the White House staggers employee departures ahead of the Jan. 20 takeover of the incoming president and the new administration.
By those last few days, many employees have turned in their White House passes and their government-issued laptops and phones and have cleaned out their offices. Those left are often juggling the need to pack up with their ongoing responsibilities, which under the Constitution continue until the final minutes. Former White House officials who stayed until the end described continuing to pack up their offices throughout the final hours on Inauguration Day, when they are obliged to vacate by noon.
The process of leaving many of the small, government offices is hardly methodical, those officials say — there is no single procedure. Aides to the president and vice president are given instructions to sort out personal materials from government records, a rule that they have been required to follow throughout their time in the White House.
But how they do that is up to them. Boxes containing personal materials are generally packed up, carried out to cars and taken home without being scanned or examined by a third party. Public records destined for the archives are packed, labeled and marked for delivery.
After leaving office, a former president or vice president can get access to presidential records from the administration, including classified documents. But that process is very proscribed. When Mr. Obama sought documents to help in writing his memoirs after leaving the White House, his aides submitted precise requests to the archives. Some of the records were delivered on encrypted laptops. Others were put in locked bags, and returned the same way.
How much Mr. Biden was involved in the disposition of documents in the days leading up to his 2017 departure from the White House is not clear. He had a hectic schedule as he tried to squeeze in as much activity as possible.
Within the final week or so, he was surprised with the Presidential Medal of Freedom by Mr. Obama. He spoke by phone with leaders from Iraq, Kosovo and Japan. And he embarked on a last overseas journey, first to Kyiv, Ukraine, where he met with Petro Poroshenko, the president, and from there to Davos, Switzerland, for the annual meeting of business and political titans, where he met with leaders of Serbia and Kurdistan.
All the while, papers back in Washington were being sorted and packed. The hours were short, the unbreakable deadline approaching. On that last day, Mr. Biden attended Mr. Trump’s inauguration, then headed to Union Station for a train trip back to Delaware. And boxes of documents were shipped to their destinations.