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Senate Democrats are finding themselves in a tough spot as they try to figure out how to best respond to revelations that President Biden had improperly stashed classified documents at his personal office in Washington and in his garage in Delaware.  

The Democrats’ position is made trickier by not knowing exactly how sensitive the documents are, nor how they came into Biden’s possession during or after his service as vice president in the Obama administration.  

Downplaying or dismissing the seriousness of the situation will be difficult after Democrats relentlessly hammered former President Trump for improperly storing classified documents at Mar-a-Lago — though there are important differences between Biden’s and Trump’s situations.  

“The classified documents stuff will be painful because Democrats made such a huge thing out of the Trump classified documents thing. The reality is everything is under the sun is classified and officials treat them as they stay in office [or leave] with less and less respect,” said Robert Borosage, a progressive activist and co-director of Campaign for America’s Future.

He said the gravity of Biden’s political problem “depends on what the documents are.” 

“Whether the investigations damage Biden depends on what they find,” he said of efforts by House Republicans. The new House GOP majority hasn’t been shy about its plans to inflict as much political damage on the president as possible by shining a light on his handling of classified documents, as well as the business dealings of his son, Hunter Biden.  

Attorney General Merrick Garland on Thursday appointed veteran prosecutor Robert Hur to serve as special counsel to investigate whether Biden’s possession of the classified documents violated the law and merits charges. He made the announcement just a few hours after the White House confirmed the discovery of a second cache of documents.  

Garland had come under pressure from Republican Sens. Lindsey Graham (S.C.) and Josh Hawley (Mo.), two members of the Senate Judiciary Committee, who called for equal treatment of Biden and Trump. Garland appointed career prosecutor Jack Smith to serve as special counsel overseeing investigations of Trump in November.  

Senate Democrats, who control the committees and have subpoena power in the upper chamber, have responded cautiously so far.

Senate Intelligence Committee Chairman Mark Warner (D-Va.) earlier this week called for administration officials to brief his committee on which documents were in Biden’s possession, something he also asked for when Trump was discovered to be holding onto classified documents at Mar-a-Lago.  

Warner, however, drew a distinction between Biden, who turned over the documents immediately to the U.S. National Archives, and Trump, who engaged in “a month-long effort to retain material actively sought by the government,” according to Warner’s statement. 

A Senate Democratic aide said it’s “impossible to know” how Biden’s personal possession of classified documents will play out until “we know more about the facts — what’s the nature of these documents?” 

“I don’t read much into the fact that a special counsel has been appointed. I don’t think Garland had much choice. I’m sure we will find out sooner or later if one could reasonably understand how these documents got to where they were,” the source added. “Are these things problematic?”  

But Democrats are praising Biden for alerting the Justice Department to the problem and immediately turning over the documents in question, in contrast to Trump’s refusal to hand over sensitive information, which prompted the FBI to raid his residence in September.  

Senate Republicans, on the other hand, are playing offense right out of the gate, demanding to know why the Justice Department waited several months, until after the midterm election, to make the disclosure.  

“Many questions remain as to why the discovery of classified documents — found several days before the midterm election — was not announced until after the election,” Graham said in a statement Thursday. “The bottom line is we need to fully understand what happened in both cases — involving President Trump and Biden — to make sure our system works in a way to protect our national security interests.”  

Ross K. Baker, a professor of political science at Rutgers University, who served several Senate fellowships, said Biden’s best defense would be to fully admit any mistakes he made and cooperate with the Justice Department investigation.  

“It’s one of these situations where it’s really important to be as forthcoming as possible and admit when there have been careless errors made. I don’t think there’s any suggestion at all that these papers were being used for some political purpose,” he said. “Sometimes it’s important for even a president to admit a mistake.” 

Baker called the improper possession of classified information the biggest scandal of Biden’s term in office so far.  

He said Democrats who want to defend Biden need to follow the president’s lead.  

“The president is pretty good about coming across to the public as sincere and even penitent if the occasion presents himself. He’s got to be the opposite of Trump on this,” he said. “Biden has been very straightforward about the fact that the papers were in his possession and should have been returned but weren’t.”  

Senate Majority Leader Charles Schumer (D-N.Y.), who has the tough job of defending 23 Democratic-controlled Senate seats in the 2024 election, on Thursday sought to shift the focus back onto what he called the House Republicans’ “extreme” agenda.  

“In the last week Republicans have given a free pass to wealthy tax cheats, empaneled a committee to undermine and threaten law enforcement, undercut women’s healthcare, and put forward a draconian budget plan that will lead to cuts to Medicare and Social Security and defunding the police,” Schumer said in a statement. “Senate Democrats will put the American people first and stand as a firewall to this extreme MAGA Republican agenda.” 

A Senate Democratic aide said one way to defend Biden from efforts by Republican lawmakers to tarnish his reputation is to point out various issues of greater practical importance to the American public that Democrats believe the new House GOP majority is failing to address.  

House Republicans, who control a slim five-seat majority, already plan to investigate Biden and his administration on multiple fronts, ranging from what they are calling the “weaponizing” of the federal government against conservatives to the business dealings of Biden’s family.    

“There’s a limit to how much protection can be done, but you can make clear what the House Republicans are failing to pay attention to,” the aide said. “When the Republicans go off the deep end, Democrats have the ability to explain and defend the president on the basis of what is actually going on.”