Special counsel won't charge Biden in classified docs probe, despite evidence he 'willfully retained' materials

He said a potential jury might see Biden as an "elderly man with a poor memory."

Special counsel Robert Hur said he will not recommend charges against President Joe Biden for his handling of classified documents while out of office, despite finding evidence that Biden "willfully retained" materials -- capping a yearlong investigation that loomed over the 2024 presidential election.

And he drew a bright line with the case against former President Donald Trump, who faces a criminal indictment for his handling of classified documents after he left office, saying that Trump refused to return his documents and "obstructed justice." Trump has pleaded not guilty.

Nonetheless, throughout the 388-page report, Hur painted a dim picture of the president -- one that his political opponents immediately seized on -- as an elderly man with memory issues who could not remember when he finished his term as vice president or when his son, Beau, died.

"We conclude that no criminal charges are warranted in this matter," said Hur's report. "We would conclude the same even if there was no policy against charging a sitting president. "

This was despite the fact that the special counsel "uncovered evidence that President Biden willfully retained and disclosed classified information after his vice presidency when he was a private citizen," the report said.

"These materials included (1) marked classified documents about military and foreign policy in Afghanistan, and (2) notebooks containing Mr. Biden's handwritten entries about issues of national security and foreign policy implicating sensitive intelligence sources and methods," said the report.

The materials were found in "the garage, offices, and basement den in Mr. Biden's Wilmington, Delaware home," the report said.

'Elderly man with a poor memory'

Ultimately, Hur's office felt that the "evidence does not establish Mr. Biden's guilt beyond a reasonable doubt."

And Hur believed that there were numerous reasons why a potential jury could find reasonable doubt at trial, notably that Biden could come across not only as "sympathetic," but forgetful and not capable of the willfulness required to convict.

Notably, Hur believed that at trial Biden could come across not only as "sympathetic," but forgetful and not capable of the willfulness required to convict.

"We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory," the report said. "It would be difficult to convince a jury that they should convict him -- by then a former president well into his eighties -- of a serious felony that requires a mental state of willfulness."

The report also stated that "Mr. Biden's memory was significantly limited, both during his recorded interviews with a ghostwriter in 2017, and in his interview with our office in 2023."

Attorneys for Biden blasted the special counsel's characterization of the president's memory and recollections during his two-day interview with investigators in October.

PHOTO: Garage box and storage closet of President Joe Biden's garage taken on Dec. 21, 2022, in a photo released by the Department of Justice.
Garage box and storage closet of President Joe Biden's garage taken on Dec. 21, 2022, in a photo released by the Department of Justice.
Department of Justice.

"We do not believe that the report's treatment of President Biden's memory is accurate or appropriate," wrote Richard Sauber, special counsel to the president, and Bob Bauer, a personal attorney for the president. "In fact, there is ample evidence from your interview that the President did well in answering your questions about years-old events over the course of five hours."

The attorneys noted that the interviews took place in the midst of the Oct. 7 attack on Israel, when Biden was busy "conducting calls with heads of state, Cabinet members, members of Congress, and meeting repeatedly with his national security team."

"It is hardly fair to concede that the President would be asked about events years in the past, press him to give his ''best" recollections, and then fault him for his limited memory," they wrote.

Biden, speaking Thursday afternoon in Virginia, noted the differences between his case and Trump's, and how the special counsel in his probe had decided not to press charges.

"This matter is now closed," Biden said.

PHOTO: President Joe Biden delivers remarks at the House Democratic Caucus Issues Conference in Leesburg, Va., Feb. 8, 2024.
President Joe Biden delivers remarks at the House Democratic Caucus Issues Conference in Leesburg, Va., Feb. 8, 2024.
Evelyn Hockstein/Reuters

Differences with the Trump case

Trump has sought to link his circumstances to Biden's by trying to draw an equivalence between their conduct and calling his prosecution the result of a justice system improperly targeting Republicans.

But records subsequently released by the National Archives indicate that Biden's legal team cooperated with National Archives officials, whereas federal prosecutors have accused Trump of deliberately withholding records he knew to be classified from investigators with the National Archives and, later, the FBI.

Hur's report drew that distinction, saying, "Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it."

"In contrast," the report said, "Mr. Biden turned in classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations including his homes, sat for a voluntary interview and in other ways cooperated with the investigation."

Documents stretch back decades

Hur's report said investigators found documents marked classified from as far back as the 1970s, including a box labeled "International Travel 1973-1979" containing materials from Biden's trips to Asia and Europe that included "roughly a dozen marked classified documents that are currently classified at the Secret level."

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According to the report, among the classified documents Biden retained were materials documenting his opposition to the troop surge in Afghanistan, including a classified handwritten memo he sent President Obama over the 2009 Thanksgiving holiday, which FBI agents recovered from Biden's Delaware home and its garage.

Asked in his interview with investigators about handwriting on a folder containing marked classified documents about Afghanistan, the report said Biden "identified the handwriting as his, but said he recalled nothing about how the folder or its contents got into his garage."

The report lays out that Biden, in writing his 2007 and 2017 memoirs, worked with a ghostwriter, and in a recorded conversation with the ghostwriter a month after he left office, referenced the 2009 memo -- saying that he had "just found all the classified stuff downstairs."

At that time, Biden was renting a home in Virginia, the report says, and met the ghostwriter there to work on second memoir. He moved out of the Virginia home in 2019 and consolidated his belongings in Delaware, where the report says FBI agents later found the documents marked classified about the Afghanistan troop surge in his garage.

As such, the report says "evidence supports the inference," that when Mr. Biden said the comment in 2017, he "was referring to the same marked classified documents about Afghanistan that FBI agents found in 2022 in his Delaware garage."

Biden 'created' classified documents

The report also said that Biden "created" his own classified documents via his own handwritten notes in notebooks and notecards, some of which Biden brought home with him and stored in "unsecured locations that were not authorized to store classified information-- even though the notebooks."

The report said Biden used notebooks filled with sensitive materials to write his 2017 memoir, allegedly acknowledging to his ghostwriter that some of the documents he relied on might be classified.

PHOTO: Blue folder labeled "Afghanistan" in a box in President Joe Biden's garage in a picture released by the Department of Justice.
Blue folder labeled "Afghanistan" in a box in President Joe Biden's garage in a picture released by the Department of Justice.
Department of Justice

"In writing 'Promise Me, Dad,' Mr. Biden relied extensively on the notebooks containing the notes he took during his vice presidency," said the report. The notebooks contained "notes of meetings Mr. Biden attended as well as entries about his other activities during this period. Many of the meetings related to foreign policy and classified information, including the President's Daily Brief, National Security Council meetings, and other briefings. Some of these entries remain classified up to the Secret level," said the report.

The report outlines that in 2017, Biden had expressed displeasure in a conversation with his ghostwriter that notes he had taken after meetings with President Obama had been turned over to the National Archives – telling the ghostwriter he had not wanted to turn the notecards in.

But investigators noted that many of the records found in Biden's home, at the Penn Biden Center, and at the University of Pennsylvania library "could plausibly have been brought to these locations by mistake."

"The evidence suggests that Mr. Biden did not willfully retain these documents," Hur wrote.

Long-anticipated report

Hur's long-anticipated report was released Thursday, hours after the White House reviewed the document and announced that "in keeping with his commitment to cooperation and transparency," the president would not assert executive privilege over any portion of the report.

Ian Sams, a spokesperson for the White House counsel's office, said in a statement that the president's legal team had completed a review of the report and that "in keeping with his commitment to cooperation and transparency," the president would not assert executive privilege over any portion of the report.

Attorney General Merrick Garland earlier this week informed key lawmakers that Hur had concluded his investigation, which examined how approximately two dozen classified documents wound up at Biden's personal home and office.

PHOTO: Interior of President Joe Biden's garage storage closet containing Senate documents, Jan. 20, 2023, in a picture released by the Department of Justice.
Interior of President Joe Biden's garage storage closet containing Senate documents, Jan. 20, 2023, in a picture released by the Department of Justice.
Department of Justice

The records in question date back to Biden's time as vice president, and at least some include "top secret" markings, the highest level of classification.

Garland appointed Hur as special counsel in January of 2023, after aides to the president discovered a batch of ten documents at the Penn-Biden Center in Washington, D.C., where Biden kept an office after his vice presidency.

A second discovery of additional records in the garage of Biden's Wilmington, Delaware, home precipitated Garland's decision to assign Hur as special counsel, ABC News reported at the time.

The report stated that "Mr. Biden's memory was significantly limited, both during his recorded interviews with the ghostwriter in 2017, and in his interview with our office in 2023."

100 interviews

Investigators interviewed as many as 100 current and former officials, including Secretary of State Antony Blinken, former White House Chief of Staff Ron Klain, and Hunter Biden, the president's son. In October, Hur's team spent two days interviewing Biden himself.

ABC News previously reported that sources who were present for some of the interviews, including witnesses, said that authorities had apparently uncovered instances of carelessness from Biden's vice presidency, but that -- based on what was said in the interviews -- the improper removal of classified documents from Biden's office when he left the White House in 2017 seemed to be more likely a mistake than a criminal act.

The White House had emphasized from the beginning that it would cooperate with investigators. Biden himself repeatedly denied any personal wrongdoing and said he was "surprised" to learn of the documents' existence.

The Hur investigation has played out quietly against the backdrop of special counsel Jack Smith's inquiry into former President Donald Trump's handling of classified records, which culminated last year in a 40-count indictment, to which Trump has pleaded not guilty.

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