How Biden's problem with newfound classified documents more a political than legal

The ramifications from the discovery of classified documents in an office used by President Biden at a University of Pennsylvania-affiliated organization in Washington D.C. are likely more political than legal, former federal prosecutor Andrew McCarthy told Fox News on Tuesday.

Obama-Biden administration-era documents with classified markings on them turned up in an office used by Biden at the Penn Biden Center for Diplomacy and Global Engagement while attorneys for the sitting president were cleaning out the space.

On "The Story," McCarthy cited outrage from Republicans over the discovery – after Biden and Democrats have made much hay over the FBI's raid of former President Donald Trump's Palm Beach, Fla. Mar-a-Lago estate, where similarly classified documents were found.

There is a difference however, between the "degree" of documentation found at Mar-a-Lago versus the approximately dozen documents found in Biden's former Washington office, he said.

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"I imagine we're finding out about it now because Congress is back in town. So there would have been briefings about this at this point. So they couldn't keep a lid on it anymore," McCarthy said, noting how the discovery purportedly happened months ago but only came to light this week.

"You mentioned justice is blind. Justice is also notoriously slow. Merrick Garland may have to make a decision about this, but it's a five-year statute of limitations," McCarthy added "And there's no pressure on him, time-wise, to make a decision about it."

"I think, you know, the issue here is much more about politics than about law."

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With Biden's Justice Department leading a fervent special counsel probe into Trump over purported mishandling of classified documents, the idea Biden may have a connection to the same type of separate investigation could be politically complicated, he suggested.

The Justice Department has already named John Lausch Jr., a Trump-appointed U.S. attorney for Northern Illinois, to look into the Biden matter. 

Lausch, based in Chicago, is reportedly the only other sitting federal prosecutor-holdover from the Trump era  besides Delaware's David Weiss, who has been litigating the investigation into Hunter Biden.

In Lausch's case, Illinois' two Democratic U.S. senators, Richard Durbin and Tammy Duckworth, had previously urged Joe Biden to retain him because of other sensitive investigations he was overseeing.

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"This is still an early phase with Biden," McCarthy told anchor Martha MacCallum. "So we'll have to see for more details. But in principle, it's the same kind of offense [as Trump]. He retained classified documents that he shouldn't have had in a place where they shouldn't have been. 

"And apparently it was together with other government records that also should have been logged with the Archives under the Presidential Records Act. So it's very close factually to the Trump investigation."

Prior to McCarthy's remarks, Fox News White House correspondent Peter Doocy shared with MacCallum a clip from August 2022 of White House Press Secretary Karine Jean-Pierre being asked whether there could be "certainty" Biden "has not mishandled, improperly stored [or] done anything improper with classified information."

Jean-Pierre curtly replied "no," and then indicated she was moving on to another subject.