President Joe Biden was facing the prospect of an imminent federal investigation after the discovery of classified documents at his former Washington office in November – and it was up to Bob Bauer, his personal attorney, to break the news to the White House, two sources familiar with the matter said.
Bauer is now the driving force behind a strategy that has focused on cooperating with investigators and trying to zero out Biden’s legal risk but that has also drawn criticism for worsening the president’s political and PR woes.
He finds himself at the center of the legal maelstrom swirling below Biden’s presidency – and has managed a drip-drip-drip of bad news for the president in recent months, with four subsequent discoveries of additional documents since that first November 2 search. The latest came following a nearly 13-hour search the FBI carried out at the president’s Wilmington, Delaware, home on Friday with the permission of Biden’s attorneys.
A veteran Democratic attorney and former White House counsel under President Barack Obama, Bauer has developed a knack for telling powerful people things they need – but don’t necessarily want – to hear, multiple former colleagues said. Part of it lies in his matter-of-fact delivery, they said. The rest comes down to what several described as an unflappable demeanor, even amid spiraling crises.
“He’s fearless in terms of delivering news to a client,” said Valerie Jarrett, a top Obama adviser who worked alongside Bauer in the White House. “He never blinks. You don’t have to wonder whether or not he’s going to get weak-kneed.”
And so, when Jarrett and two other senior advisers agreed they had to tell Obama news he “did not want to hear” on what she described as a “highly sensitive and personal matter,” they sought out Bauer.
Bauer reprised his role as bearer of bad news on November 2. After a White House official transmitted Bauer’s initial heads-up to Biden, Bauer later gave the president a more fulsome briefing, laying out the beginnings of a strategy to navigate the fallout, which continues to guide the White House’s public and private posture and which has come under heated public scrutiny.
That criticism has focused most acutely on the White House’s first statement earlier this month, which acknowledged the discovery of classified documents at the Penn Biden Center office in November, but omitted the discovery of a second batch of documents at Biden’s Wilmington home in late December.
“I’m kind of surprised by it because Bob is usually pretty savvy about this stuff,” a former Obama White House official who worked with Bauer said of the critical omission.
Like the decision not to disclose the initial discovery of classified documents for more than two months, people familiar with the matter said Biden’s team wanted to avoid public disclosures that could be viewed as getting ahead of and undermining DOJ’s investigation.
For months, Bauer was part of the small circle of aides involved in weighing what to disclose and when. That included lawyers inside the White House, like White House special counsel Richard Sauber, and Anita Dunn, Biden’s top communications adviser and Bauer’s wife. Keeping the information closely held was intentional, even as it risked leaving key messaging advisers out of the loop, because the legal concerns were driving the decision-making process.
The group aware of the matter remained exceedingly small – even as it expanded to include Biden’s chief of staff Ron Klain and his senior adviser Mike Donilon – until it became inevitable that the president’s team would need to prepare for it to leak out in the media, people familiar with the details said.
The aides understood that not revealing the discovery of a second batch of documents at Biden’s home in that initial statement would generate criticism, but they decided to adhere to Bauer’s legal strategy – wagering that losing some credibility with the press was less important than losing credibility with DOJ officials, according to a source familiar with the matter. Biden’s team also believed that making a more fulsome disclosure would not have lessened the public furor, the source said.
Above all, Biden’s team is motivated by a desire to cooperate and draw DOJ’s investigation to a close. That mentality motivated Biden’s team to quickly agree to an FBI search of his Wilmington home, according to a source familiar with the matter, just nine days after Biden’s attorneys carried out their last search of the property.
That source said Biden’s legal team viewed the FBI search as inevitable, particularly after the discovery of additional documents at the Wilmington home, and decided “the faster this happened, the better.”
“This is a team that has consistently demonstrated they’re far more interested in the long game than whatever the issue of the day driving Twitter may be,” a second person familiar with the strategic planning said. “There’s an understanding that people outside may not get that, but this isn’t some kind of dramatic shift – it’s where they’ve always been even if it doesn’t satisfy the Beltway crowd.”
There would be no divergence from the carefully constructed plans to highlight Biden’s agenda and no changes to his day-to-day schedule. Biden officials would publicly highlight the sharp differences between the Biden and Trump documents investigations, with those distinctions also driving their process behind the scenes.
Weighing heavily on that thinking was a mid-November letter from DOJ’s National Security Division that directed Biden’s legal team not to review or move materials and asked for full cooperation, a source familiar with the matter said, which Biden’s legal team understood as issuing minimal public statements about the ongoing investigation.
Bauer also wanted to avoid creating a precedent of proactively sharing new information about the case and taking the risk of providing an incomplete picture of an ongoing investigation, the source said – one that DOJ might be compelled to correct.
In practice, the White House’s incomplete first public statement on the documents not only undercut the administration’s stated commitment to public transparency; it also caused a ripple effect at the Justice Department, where Attorney General Merrick Garland was preparing to name a special counsel.
Garland had initially planned to leave out details of the investigation during that announcement, according to people briefed on the matter. But the White House’s omission of the Wilmington documents prompted DOJ officials to change course, the people said, and Garland instead laid out a timeline that revealed the second batch of documents had been found weeks earlier – and that the White House knew.
The White House’s omission of that detail in the initial statement embodied the enduring tension between a legal and communications strategy, and while Bauer’s former colleagues said he was always mindful of both, his focus was on providing the best legal advice.
“Bob is politically sophisticated – he understands all of that – but when he’s functioning in the role of lawyer, he behaves like one, which is to say he is conservative in securing, safeguarding the legal interests of his client,” said David Axelrod, a former senior adviser to Obama who worked with Bauer at the White House.
Biden’s confidence in Bauer
Nearly a dozen former colleagues and friends who spoke with CNN unanimously described Bauer as a brilliant and savvy attorney who is cautious and rarely rattled. They invariably called him “collaborative,” “brilliant” and a true “lawyer’s lawyer” who demonstrated tremendous integrity in his professional life.
“There is no lawyer in the country who is better equipped to handle a matter like this than Bob Bauer. Full stop,” said Kathy Ruemmler, a former White House counsel who served as Bauer’s principal deputy during the Obama administration.
“The stakes don’t get any higher than this,” said Ben Ginsberg, a veteran Republican election lawyer and Bauer’s decades-long friendly rival. “But Bob spent 40 years on high-stakes matters and representing presidents, public officials and high-profile candidates. From (Biden’s) perspective, Bob is the right person for this.”
Biden’s selection of Bauer to serve as his personal attorney was hardly a surprise to people inside the White House.
Even before serving as general counsel on Biden’s 2020 campaign, where he navigated sexual assault accusations made against Biden by a former Senate staffer, Bauer had been a sounding board and adviser, including when Biden was weighing a run for president following the death of his son Beau in 2015. Bauer worked out an agreement with his law firm to act as an adviser to Biden as he deliberated whether he was ready to mount a bid for the Democratic nomination.
Bauer took the lead on preparing Biden’s 2020 campaign for what they knew could be a messy Election Day – or even week. Then-President Donald Trump and his allies had made more than clear that if things didn’t go their way, they wouldn’t go down easy. Biden campaign officials – and the candidate himself – relied on what one person described as Bauer’s ability to see through the fogginess as they braced for the deluge of conspiracy theories and lies from their opponent.
“Biden has always had total confidence in what Bob tells him,” one person familiar with the men’s relationship said. “You don’t hear him second-guessing him, which isn’t really true for the rest of the team.”
Bauer has also become one of the few people to earn the deep trust of both Obama and Biden, whose innermost circles display little overlap. Bauer has served as personal attorney to both men and was among only a handful of aides who received a thank you in the acknowledgments of Biden’s 2017 memoir.
Don Verrilli, the former solicitor general who served as Bauer’s deputy when he was White House counsel, witnessed up close Obama’s trust in Bauer. And during Zoom meetings between Biden and members of his vice presidential search committee, which Bauer headed, Verrilli saw a similar trust develop.
“It was just evident how much respect (Biden) had for Bob and how much he trusted Bob,” Verrilli said.
Dunn, the White House’s senior adviser for communications, is also among the few to crack both inner circles. Bauer and Dunn now find themselves paired in confronting the Biden documents case. People who have worked with the couple previously say they hold each other’s viewpoints in high regard, even if those don’t always align.
“If you didn’t know they were married, you wouldn’t know they were married. They’re professionals,” said Ruemmler. “He gives his point of view, she gives her point of view. They don’t always agree.”
Future of Bauer’s cooperation strategy
Bauer’s strategy of maximum cooperation could be put to the test as special counsel Robert Hur takes over the case.
US Attorney John Lausch’s initial review of the Biden’s documents matter was not a full-blown criminal investigation, and he did not use a grand jury. Even an interview with a key witness – Biden attorney Pat Moore, who first discovered the classified material at the Washington office – appears to have been an informal conversation that did not generate a 302 form that the government uses to memorialize interviews.
Now Hur, who has yet to formally take up the role, is in the process of assembling his team, and legal experts expect he will use a grand jury.
Biden’s legal team has stressed they plan to continue to cooperate with the investigation, but a source familiar with the matter said disagreements could eventually emerge with the Department of Justice about what future cooperation actually looks like.
Bauer could, for example, confront the question of whether to make the president available to answer questions from investigators. The White House has not ruled out a presidential interview.
“We’re not going to get ahead of that process with the special counsel and speculate on what they may or may not want or ask for,” said Ian Sams, a spokesman for the White House Counsel’s Office.
Paula Reid and MJ Lee contributed to this story.