Federal prosecutor reviewing classified documents found at former Biden office

A "small number" of government documents marked as classified were found this fall by lawyers for President Joe Biden in a locked closet in a Washington, D.C., think tank office used by Biden when he was a private citizen, his lawyer said Monday.

The Department of Justice and the National Archives and Records Administration are reviewing the circumstances surrounding the documents, according to a statement by Richard Sauber, special counsel to Biden.

Sauber said the documents appear to be from the Obama administration, during which Biden served as vice president.

The documents, Sauber said, were found at the Penn Biden Center for Diplomacy and Global Engagement on Nov. 2.

That was nearly three months after FBI agents raided the Florida residence of former President Donald Trump and seized more than 100 classified government documents and hundreds of more records that federal prosecutors say belong to the U.S. government.

Trump is the focus of a criminal probe by the DOJ for his removal of the records from the White House in January 2021.

By law, government records must be given to the National Archives when a president or officials in their administration leave office.

Sauber's statement was issued after CBS News first reported the discovery of the records at the Penn Biden Center.

A source familiar with the situation told NBC News that Attorney General Merrick Garland asked the U.S. attorney for the Northern District of Illinois, John Lausch, to review how classified material ended up at the Penn Biden Center.

That task was intentionally assigned to Lausch, who was appointed to the prosecutor's office by Trump, to avoid any conflict of interest, the source told NBC.

On Monday night, Trump wrote, in a post on his social media site, "When is the FBI going to raid the many homes of Joe Biden, perhaps even the White House?"

"These documents were definitely not declassified," Trump wrote.

He has claimed without evidence that he declassified records found at his Mar-a-Lago club in Palm Beach, Florida.

Even if Trump had declassified the records that had classified markings, he still could face criminal prosecution if the DOJ finds he likely broke the law by removing all of the records from the White House, and by obstructing efforts to recover them.

Biden, during an appearance on the CBS news show "60 Minutes" in September, had expressed dismay at an FBI photo that showed some of the government records found at Mar-a-Lago.

"How that could possibly happen? How anyone could be that irresponsible?" Biden asked. "Totally irresponsible." 

Sauber's statement about the Biden documents on Monday, which was provided by the White House, said, "The documents were discovered when the President's personal attorneys were packing files housed in a locked closet to prepare to vacate office space at the" center.

"The President periodically used this space from mid-2017 until the start of the 2020 campaign," Sauber said.

He added that the documents "were not the subject of any previous request or inquiry by the [National] Archives."

That was a pointed reference to the fact that the National Archives had repeatedly asked Trump and his lawyers about documents the agency suspected had not been returned before the FBI raid at Mar-a-Lago.

Biden's personal lawyers, since the discovery of the records, "have cooperated with the Archives and the Department of Justice in a process to ensure that any Obama-Biden Administration records are appropriately in the possession of the Archives," Sauber said

A source familiar with the situation told NBC News that Biden only became aware of the classified documents being stored in his former office when he was told by his lawyers they had discovered them.