(WASHINGTON) — Sources familiar with the matter tell ABC News the December discovery of classified documents inside President Joe Biden’s Wilmington, Delaware, home served as a tipping point in the lead-up to a special counsel.

That was the moment, sources said, that it became almost certain in the minds of investigators that an outside prosecutor would likely have to be appointed to look into Biden apparently retaining sensitive records from his time as vice president.

On Thursday, Attorney General Merrick Garland announced he had done just that, naming Robert Hur as special counsel and citing the recommendation of U.S. Attorney for the Northern District of Illinois John Lausch, who was reviewing the matter.

While it remains unclear if Biden played any role in the classified documents being in his home or if he was personally aware they were there, sources said their presence meant there would need to be more intensive investigation.

It’s not unusual for presidents to take classified materials out of the White House while they are in office. But the records at issue were from Biden’s vice presidency, which ended in 2017, his lawyers have said.

As one source said, classified documents from Biden’s time as vice president being discovered in November at his old office at the Penn Biden Center — a Washington, D.C., think tank — could more quickly be explained away. But additional materials being found at his residence raised the specter of him having some kind of personal involvement or interest in them being there.

The sources said that while all the documents, including those found at the Penn Biden Center, are being studied for a damage assessment, the records at Biden’s house in Delaware will be closely looked at to see if it suggests the president may have been able to use them for personal, financial or some other gain. 

Garland has been careful to try and make clear that he is running the Justice Department independently, without any favoritism toward President Biden, who appointed him.

The discovery of the classified documents at Biden’s office and home late last year came around the same time Garland was grappling with whether to appoint a special counsel to investigate Donald Trump’s alleged mishandling of classified documents at his Mar-a-Lago resort in Florida, after the former president left the White House. 

Within days of classified documents being found at Biden’s old office, Trump announced he was running for president and Garland announced the appointment of Jack Smith as special counsel in that case, citing “extraordinary circumstances.” 

At the time, the public didn’t know that Garland was already aware of the discovery of classified records from the period when Biden was not in office.

Even more documents being located last week made it clearer that a special counsel was needed, sources told ABC News. 

Department of Justice officials have emphasized that they’ve made no determination on whether Biden intended to break any law — but that they now must figure out as best they can what happened with the classified records, and they cannot merely rely on the account from the Biden team.

One critical question is why there was not a more exhaustive search of Biden’s residence after the December discovery.

An attorney for Biden, Richard Sauber, said last week that the White House will cooperate with the DOJ investigation.

“We are confident that a thorough review will show that these documents were inadvertently misplaced, and the President and his lawyers acted promptly upon discovery of this mistake,” Sauber said in a statement.

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(WASHINGTON) — Rep. Adam Schiff, a former chair of the House Intelligence Committee, said Sunday that classified documents recently discovered to be in President Joe Biden’s possession from his time as vice president need to be assessed for their national security implications.

“I don’t think we can exclude the possibility without knowing more of the facts,” the California Democrat said of the Biden documents during an appearance on ABC’s “This Week” when pressed by co-anchor Jonathan Karl about any national security risks.

Schiff said that he would like to see more information from the intelligence community on the details of the documents, noting that he expects similar details regarding the trove of classified materials that were recovered from former President Donald Trump’s Mar-a-Lago resort.

“We have asked for an assessment in the intelligence community of the Mar-a-Lago documents,” Schiff said. “I think we ought to get that same assessment of the documents found in the think tank as well as the home of President Biden. I’d like to know what these documents were. I’d like to know what the [intelligence community’s] assessment is, whether there was any risk of exposure and what the harm would be and whether any mitigation needs to be done.”

Beginning last week, the White House acknowledged in a series of statements that Biden’s attorneys in November found classified records from his time as vice president while they were packing up his files at an old office in Washington, D.C.

Further searches by Biden’s team found classified records at his home in Wilmington, Delaware, according to the White House, which disclosed the matter to the public amid news that the Department of Justice was investigating.

The president is cooperating and his lawyers quickly flagged the issue to the National Archives in the fall, his aides have stressed.

On “This Week,” Karl asked Schiff whether the White House had been forthcoming enough, given the two-month delay since the initial documents were discovered before the 2022 midterm election.

“I think the administration will need to answer that question. I’m going to reserve judgment until they do,” Schiff said.

He said he thought Attorney General Merrick Garland made the right decision to appoint a special counsel to review Biden’s handling of the sensitive documents — a view echoed by Republican Rep. Don Bacon of Nebraska and Democratic Sen. Raphael Warnock of Georgia, who also appeared on “This Week” on Sunday.

“The attorney general has to make sure that not only is justice evenly applied, but the appearances of justice are also satisfactory to the public. And here, I don’t think he had any choice but to appoint a special counsel,” Schiff said. “And I think that special counsel will do the proper assessment.”

But, he said, “I still would like to see Congress do its own assessment of and receive an assessment from the intelligence community of whether there was an exposure to others of these documents, whether there was harm to national security in the case of either set of documents with either president.”

Schiff criticized new House Oversight Committee Chair James Comer, R-Ky., who has notified the Biden White House of a congressional probe but said last year that looking at Trump’s handling of classified documents “will not be a priority.”

“Those requests [to the Biden White House] are completely hypocritical when you consider what he said about the Mar-a-Lago situation. I think Congress ought to handle both situations the same way,” Schiff said.

And while “the Biden administration ought to cooperate with any appropriate inquiry from Congress,” Schiff said, oversight efforts shouldn’t be used as political roadblocks.

“Congress shouldn’t try to interfere with the investigations. I think, sadly, that’s what Mr. Comer’s object is,” Schiff said.

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