"That just cannot stand": Warner and Rubio united in demanding access to Trump, Biden documents

Washington — The Democratic and Republican leaders of the Senate Intelligence Committee are urging the director of national intelligence to provide the panel with access to the documents marked classified that were found in the homes of President Biden and former President Donald Trump.

In a joint interview with "Face the Nation" moderator Margaret Brennan that aired on Sunday, Sens. Mark Warner, the Democratic chair of the Intelligence Committee, and Marco Rubio, the Republican vice chair, stressed the importance of seeing the records for themselves to determine whether there has been a national security breach.

"Our job is not to figure out if somebody mishandled those. Our job is to make sure there's not an intelligence compromise," Warner said. "And while the director of national intelligence had been willing to brief us earlier, now that you've got the special counsel, the notion that we're going to be left in limbo and we can't do our job — that just cannot stand."

• Transcript: Sens. Mark Warner and Marco Rubio on "Face the Nation"

Due to the ongoing Justice Department investigations, the information that prompted the probes has not been shared with Congress. Asked whether they had a timeline for when they might gain access to the records, Warner said "no."

CBS News has reported that several dozen items with classification markings were taken from Mr. Biden's Wilmington home, as well as from a Washington office the president used while a private citizen. Some of the documents date back to Mr. Biden's Senate career, while others are from his time as vice president. Hundreds of documents with classified markings were retrieved from Trump's Florida estate of Mar-a-Lago last year.

Members of the Intelligence Committee met Wednesday with the Director of National Intelligence Avril Haines. According to Warner, senators emphasized to her that they cannot fulfill their oversight role and determine if the intelligence community is taking sufficient steps to mitigate any threat posed by the documents' potential disclosure without knowing which classified materials were discovered.

Warner and Rubio said the meeting left them unsatisfied, citing a lack of detail and uncertainty over when they will receive a briefing on whether any intelligence was compromised when the materials were mishandled.

On Thursday, Rubio rejected the notion that sharing details with the top-ranking Intelligence Committee members in Congress would in any way impede the Justice Department's investigations.

"These are probably materials we already have access to," he said. "We just don't know which ones they are. And it's not being nosy. You know, here's the bottom line: If, in fact, those documents were very sensitive materials, were sensitive, and they pose a counterintelligence or national security threat, then the intelligence agencies are tasked with the job of coming up with ways to mitigate that."

Rubio continued: "How can we judge whether their mitigation standards are appropriate if we don't have material to compare it against, and we can't even make an assessment on whether they've properly risk-assessed it?"

Warner also noted that there have been past instances of Congress receiving access to classified documents during Justice Department investigations, specifically when the Intelligence Committee investigated Russian meddling in the 2016 presidential election while special counsel Robert Mueller simultaneously conducted his own probe. 

"This idea that we're not going to get that access, just, again — we all agreed, and I think the director heard loud and clear from all of us. It's just not tenable," he said.

Rubio accused Haines on Twitter of "refusing to let us do our jobs" and warned there will be "bipartisan consequences imposed until they come to their senses." His comment came after he suggested earlier this week that Congress could withhold funding for some intelligence agencies if the Biden administration continues to stonewall their requests for information on the documents.Rubio told "Face the Nation" that he is "not in a threat business right now," but acknowledged the Intelligence Committee is not powerless to respond.

"There are things we need to do as a committee every year to authorize the moving around of funds. I think the director of national intelligence and other heads of intelligence agencies are aware of that," he said. "I'd prefer for them just to call us this morning or tomorrow or whenever and say, 'Look, this is the arrangement that we think we can reach, so that the overseers can get access to this.' I prefer not to go down that road, but it's one of the pieces of leverage we have as Congress."

The Florida senator also accused the Justice Department of leaking details of the investigations to journalists.

"Somehow, the only people who are not allowed to know what was in there are congressional oversight committees. But apparently, the media leaks out of the DOJ are unimpeded in terms of characterizing the nature of some of the materials that were found, plus whatever the individuals involved are telling the media. So it's an untenable situation that I think has to be resolved," he said.

Both Warner and Rubio noted that while some of the documents discovered with Mr. Biden and Trump date back several years, they could reveal details about sources and intelligence-gathering methods.

"Even though the information itself might no longer be very relevant, it does reveal how we collect information and thereby cost us those accesses and potentially cost someone — you know, again, we don't know what's in the material — potentially put someone in harm's way," Rubio said.

The Senate and House Intelligence Committees both asked for damage assessments of the sensitive materials found in Mr. Biden's and Trump's possession. A "small number" of documents bearing classification markings were also discovered last week at former Vice President Mike Pence's Indiana home and turned over to the FBI, according to his lawyer.

Attorney General Merrick Garland appointed two special counsels to lead separate Justice Department investigations into the handling of the documents by Trump and Mr. Biden.

In Mr. Biden's case, between 25 and 30 documents bearing classification markings dating to his time as a senator and vice president were found by his personal lawyers at his former office at the Penn Biden Center for Diplomacy and Global Engagement in Washington and his Wilmington house. The discoveries were first made in November but withheld from the public until CBS News reported their existence earlier this month.

The records were handed over to the Justice Department, and Richard Sauber, Mr. Biden's special counsel, said in a Jan. 12 statement that the documents were "inadvertently misplaced." The FBI conducted a consensual search of the president's Delaware home last week and found six items containing classified markings, Mr. Biden's personal attorney Bob Bauer said over the weekend.

In Trump's case, more than 300 documents with classification markings were discovered at Mar-a-Lago following months-long efforts by the National Archives and Records Administration to retrieve records taken by the former president from the White House at the end of his presidency.

Of the 300 records, more than 180 documents with classification markings were in boxes retrieved by the Archives from Mar-a-Lago in January 2022. Another 38 documents marked classified were turned over to the Justice Department by Trump's lawyers in June in response to a grand jury subpoena seeking all documents bearing classification markings in Trump's possession.

More than 100 documents marked classified were then found at Mar-a-Lago when the FBI conducted a court-approved search of the premises on Aug. 8.

Trump has claimed that he declassified the records before leaving office, a claim his lawyers have not repeated in court. Separately, Trump has said that he deemed the documents "personal" under the Presidential Records Act and could therefore keep them.

The discovery of the records at Mr. Biden's home prompted Pence to ask an aide to review records kept in his Indiana home. Greg Jacob, a lawyer for Pence, told the Archives in a Jan. 18 letter that the records discovered "appear to be a small number of documents bearing classified markings that were inadvertently boxed and transported" to Pence's home at the end of the Trump administration.

The documents were "immediately" secured in a locked safe and collected by the FBI on Jan. 19, Jacob said.

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