Biden Administration to Brief ‘Gang of Eight’ on Mishandled Classified Files

WASHINGTON — The Biden administration has agreed to brief top congressional leaders at the end of this month about the classified documents that were improperly in the custody of former President Donald J. Trump, President Biden and former Vice President Mike Pence, officials said on Tuesday.

The deal for a Justice Department briefing with the so-called Gang of Eight, a select group of House and Senate members with whom the most sensitive intelligence is shared, may ease long-simmering tensions over bipartisan demands by the Senate Intelligence Committee to see the files.

Still, the briefing would include only the top two members of the committee and not its rank-and-file members, according to people familiar with the negotiations. And while the Justice Department has agreed to reveal additional information about the nature of the records to the Gang of Eight, it is resisting providing access to the documents themselves, which it considers key evidence in continuing investigations.

Speaking to reporters on Tuesday, the panel’s chairman, Senator Mark Warner, Democrat of Virginia, said the details of what would be shared remained “a work in progress.” The Biden administration’s initial position, which he portrayed as reluctance to disclose anything until special counsel investigations into Mr. Trump and Mr. Biden were over, was “kind of absurd,” he added, given the oversight role of his committee.

Against that backdrop, it remains to be seen whether the limited nature of the briefing will satisfy those demands, which have opened an unusual divide between Democrats in the Biden administration and Democrats in Congress who joined their Republican counterparts in saying that lawmakers had a legitimate need to see the materials.

Understand the Biden Documents Case

The discovery of classified documents from President Biden’s time as vice president has prompted a Justice Department investigation.

  • Hasty Packing: The account of how classified files ended up in President Biden’s personal office in Washington is now at the heart of a special counsel’s inquiry into whether the papers were mishandled by two aides.
  • Biden’s Miscalculations: How has Mr. Biden handled the document discoveries, and why was the public in the dark for so long? Michael D. Shear, a White House correspondent for The Times, explains the ordeal.
  • Implications for Trump Case: Despite the differences between them, the cases involving the president and his predecessor are similar enough that investigators may have a harder time prosecuting Mr. Trump criminally.
  • Democrats’ Reaction: Mr. Biden is facing blowback from some members of his own party, as his allies express growing concern that the case could get in the way of the Democrats’ momentum coming out of the midterms.

Other lawmakers on the intelligence committee who have pressed to view the documents include Senator Ron Wyden, Democrat of Oregon, and Senator Tom Cotton, Republican of Arkansas. Mr. Cotton last month vowed to block all of Mr. Biden’s nominees until the administration provided such access.

The fight has played out as Republicans in the House, newly empowered after the midterm elections gave them the majority, have signaled they intend to demand internal Justice Department documents about numerous issues, like the classified records or the investigation into the events leading up to the Jan. 6, 2021, assault on the Capitol.

Mr. Warner and Senator Marco Rubio, Republican of Florida, insisted to the Justice Department that they had a legitimate need to oversee the intelligence community, including addressing “potential risks to national security arising from the mishandling of this classified information.”Credit…Kenny Holston/The New York Times

Mr. Warner and Senator Marco Rubio, Republican of Florida and the committee’s vice chairman, first asked to see the files with classification markings that the F.B.I. found in its August search of Mr. Trump’s Mar-a-Lago estate and club. In January, after the disclosure that classified documents had been in Mr. Biden’s former office and at his Wilmington home, they asked to see those, too — and, later, classified documents that were discovered to have improperly accompanied Mr. Pence when he left office.

On Jan. 28, the Justice Department sent the two lawmakers a letter noting the appointment of special counsels for Mr. Biden and Mr. Trump. The department said it would try to provide information to meet the committee’s “interest in overseeing the nation’s intelligence activities” while citing its longstanding policy of protecting the confidentiality of information central to open inquiries.

The two lawmakers responded days later, saying they had a legitimate need to oversee the intelligence community, including addressing “potential risks to national security arising from the mishandling of this classified information.”

“In other investigations involving the mishandling of classified information,” the lawmakers said, “the attorney general and the director of national intelligence have accommodated the legitimate oversight needs of this committee without detriment to any ongoing investigation.”

The executive branch previously shared some documents relevant to Robert S. Mueller III’s special counsel investigation into Russia’s interference in the 2016 election with the Senate Intelligence Committee, which conducted its own bipartisan investigation into the matter.

Under normal circumstances, the executive branch is required by law to keep the intelligence committees fully informed about classified intelligence activities. However, if the president decides “that it is essential to limit access,” officials can instead brief only eight congressional leaders, known as the Gang of Eight. This group consists of the top Republicans and Democrats in each chamber and those leading the House and Senate intelligence committees.

Still, limiting briefings have not always ensured the confidentiality of information that is shared. In March 2017, the F.B.I. briefed the Gang of Eight about the Russia investigation. A week later, Senator Richard Burr, the North Carolina Republican who oversaw the intelligence committee, appears to have relayed information about the investigation to Mr. Trump’s White House counsel, according to notes of their meeting later cited in the Mueller report.

Adam Goldman contributed reporting.

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