Attorney General Merrick Garland has “multiple options” for handing an investigation into former Vice President Mike Pence’s improper retention of classified records, and former officials and legal experts told Fox News Digital that he is “not obligated” to establish another special counsel.
Pence informed Congress on Tuesday that he discovered documents with classified markings in his Carmel, Indiana, home on Jan. 16 from his time as vice president.
Pence informed the National Archives on Jan. 18 of a small number of potentially classified documents found in two boxes. Another two boxes contained copies of vice presidential papers, and all of them were immediately put into a safe, according to the Pence team.
Former Vice President Mike Pence this week acknowledged possessing some classified documents in his Indiana home. (John Lamparski / File)
“Garland has multiple options,” Ty Cobb, former White House special counsel under the Trump administration, told Fox News Digital when asked what DOJ’s next steps might be. “But the ordinary course would be an initial investigation by the DOJ into whether the documents were: one, actually classified and, if so, remain classified; and two, may have been ‘knowingly’ removed with the intention to retain.”
“On the currently available information, unlike with Biden and Trump, we don’t really know the answers to those questions yet,” he said.
The FBI seized classified records from former President Donald Trump’s Mar-a-Lago home in Florida last August during an unprecedented raid. On Nov. 18, Garland appointed former DOJ 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 chosen U.S. Attorney John Lausch to conduct a review of classified records that were discovered at the Penn Biden Center. In December, more classified records were found at Biden’s Wilmington, Delaware, home.
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Garland chose former U.S. Attorney Robert Hur as special counsel to investigate Biden’s improper retention of classified records. Hur is set to take over the DOJ investigation from Lausch.
A special counsel was assigned to deal with the Biden documents to avoid a conflict of interest. (Anna Moneymaker / File)
The Pence team said the decision to search the former vice president’s home and office of his political advocacy group, Advancing American Freedom, for classified documents came after the initial revelations that Biden held 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 the applicable statute, Garland “was not required to do so as to Trump either, although he had the discretion to do so and exercised that discretion.”
Former President Donald Trump (Saul Loeb / AFP via Getty Images / File)
“There is no doubt, however, that he was obligated to appoint a special counsel as to Biden,” Cobb said, noting the reason is due to the “actual conflict of investigating his boss under the special counsel statute.”
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According to that statute, the attorney general will appoint a special counsel when he or she determines that criminal investigation of a person or matter is warranted and that investigation or prosecution by the Justice Department would present a conflict of interest for the DOJ. The statute also says an attorney general can appoint a special counsel if it is in the public interest.
U.S. Attorney General Merrick Garland has options for dealing with former Vice President Mike Pence’s classified documents. (Anna Moneymaker / Getty Images / File)
Cobb said that if Garland does conclude there is a possible violation of 18 U.S.C. 1924 with regard to Pence, “He can instruct DOJ to continue to investigate, assign the matter to a U.S. attorney’s office or appoint a special counsel.”
Former Ambassador Norm Eisen, the former White House special counsel for ethics for former President Barack Obama, told Fox News Digital that he believes Garland will pick another special counsel.
“I think more likely than not that we do end up with a special counsel assignment,” Eisen told Fox News Digital.
But Eisen told Fox News Digital that it is highly unlikely that Pence’s case would be taken over by Smith, the special counsel investigating the Mar-a-Lago documents.
“Even if those documents are from the Trump administration, I think if you gave it to Jack Smith, you’d be sending a signal that, you know, it is of a commensurate seriousness as the Trump matter, and it’s not,” Eisen said. “If Garland gives the Pence case to any existing special counsel, it would be to Hur because the Biden case feels much more comparable to the Pence case.”
Eisen added that the Biden case is “not a very complicated” one, but it “felt complicated because of the drip, drip, drip” of records being discovered at Biden’s office and in his home.
Norm Eisen, the former special counsel for ethics for former President Obama, says a special counsel could be tapped to investigate Pence’s handling of classified records. (Drew Angerer / Getty Images / File)
Comparing Biden and Pence, Eisen said there is “every indication that this was accidental,” but he predicted that Garland would take several weeks to determine how he will handle the Pence case.
But former Assistant U.S. Attorney Andy McCarthy told Fox News Digital that “there is no reason to have a special counsel.”
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“The mistake that was made here is he didn’t need one for Trump,” McCarthy said. “The investigation of Trump, Garland named a special counsel, but there was no basis for that.”
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.”
Former Assistant U.S. Attorney Andy McCarthy
“There is no conflict of interest in the Justice Department investigating Trump. They were doing it for two years before this all happened,” McCarthy said.
Cobb said Garland had “greater discretion” for Trump and Pence “because the conflict isn’t actual but could be perceived due to the possibility they might run against Biden.”
Eisen, though, defended Garland’s appointment of a Trump special counsel, citing Trump’s 2024 announcement.
“Donald Trump has declared for the presidency, so that puts him in a position of adversity towards the sitting president, who is overwhelmingly likely himself to seek the presidency again,” Eisen said. “So there, at a minimum, is the appearance or question of a conflict and very extraordinary circumstances.”
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He added, “Garland didn’t want the constant questioning of his partisan motives. The case is already politically charged, even handing it off to career civil servants.”
The Justice Department did not immediately respond to Fox News’s request for comment on how Garland plans to proceed.
