US President Joe Biden answers questions from the press following his remarks regarding lowering cost for American families in the South Court Auditorium of the Eisenhower Executive Office Building on Thursday January 12, 2023.
Demetrius Freeman | The Washington Post | Getty Images
President Joe Biden “willfully retained and disclosed classified materials after his vice presidency,” Department of Justice special counsel said in a final report released Thursday.
But special counsel Robert Hur also said that he had declined to prosecute Biden for his handling of that material, which by law should have been given back to the U.S. government when he ended his second terms as vice president in January 2017.
The FBI found those documents in the garage, office, and basement den in Biden’s Wilmington, Delaware, home.
They included documents about military and foreign policy in Afghanistan, and notebooks containing Biden’s entries about national security.
“Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen,” Hur wrote in his nearly 400-page report.
“He knew he kept classified information in notebooks stored in his house and he knew he was not allowed to do so,” the special counsel said.
Biden even had shared some classified information with his ghostwriter for his second memoir, “Promise Me, Dad,” published in 2017, which Hur said did not appear to contain any classified information.
But Hur added that the evidence “does not establish Mr. Biden’s guilt beyond a reasonable doubt.”
“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 special counsel said.
“We conclude that no criminal charges are warranted in this matter,” the report said. “We reach the same conclusion even if Department of Justice policy did not foreclose criminal charges against a sitting president.”
Elsewhere in the report, Hur bluntly detailed lapses in Biden’s memory when he was questioned for the probe.
‘Hazy’ Memory
“In his interview with our office, Mr. Biden’s memory was worse,” Hur wrote.
“He did not remember when he was vice president, forgetting on the first day of the interview when his term ended (‘if it was 2013 – when did I stop being Vice President?’), and forgetting on the second day of the interview when his term began (‘in 2009, am I still Vice President?’),” the report said.
“He did not remember, even within several years, when his son Beau died,” the special counselt said. “And his memory appeared hazy when describing the Afghanistan debate that was once so important to him.”
“Among other things, he mistakenly said he “had a real difference” of opinion with General Karl Eikenberry, when, in fact, Eikenberry was an ally whom Mr. Biden cited approvingly in his Thanksgiving memo to President Obama.”
Hur said that he expected that Biden’s lawyers would uses these memory gaps as a defense at trial if he were prosecuted.
“In a case where the government must prove that Mr. Biden knew he had possession of the classified Afghanistan documents after the vice presidency and chose to keep those documents, knowing he was violating the law, we expect that at trial, his attorneys would emphasize these limitations in his recall,” the special counsel wrote.
In a letter attached to the report, Biden’s lawyers complained to Hur about what they called his “prejudicial and inflammatory” descruption of the president’s “inability to recall dates or details of events that happened years ago.”
The lawyers wrote that Hur had not used “denigrating” language to describe other witnesses’ failure to recall years-old events.
Biden in a statement on the report’s release said, “I was pleased to see they reached the conclusion I believed all along they would reach – that there would be no charges brought in this case and the matter is now closed.”
“I cooperated completely, threw up no roadblocks, and sought no delays,” the president said.
Biden vs. Trump
The report comes nearly 13 months after Attorney General Merrick Garland named Hur special counsel to lead the probe into classified records that were found at the president’s office and residence in late 2022.
Hur’s report lands in the middle of a presidential race that was already laden with legal intrigue, and outrage.
Biden faces a likely rematch against former President Donald Trump, who is facing criminal charges over classified documents he took with him when he left the White House in 2021. When archivists noticed they were missing and asked Trump to return them, he refused.
Trump was charged in June with 37 felonies, including willful retention of national defense information, a violation of the Espionage Act.
Trump had hundreds more classified documents in his possession than Biden did — more than 300 in total, including 102 that were seized during an FBI raid on Trump’s Palm Beach resort home in August 2022. Trump has pleaded not guilty to the charges.
Hur in his report Thursday drew a distinction between Biden’s conduct and that of Trump.
“With one exception, there is no record of the Department ofJustice prosecuting a former president or vice president for mishandling classified documents from his own administration,” Hur wrote.
“The exception is former President Trump. It is not our role to assess the criminal charges pending against Mr. Trump, but several material distinctions between Mr. Trump’s case and Mr. Biden’s are clear,” the special counsel wrote. “Unlike the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if proven, would clearly establish not only Mr. Trump’s willfulness but also serious aggravating facts.”
But Trump in a statement seized on Hur’s decision not to charge Biden as evidence of a “two-tiered system of justice,” saying that he was the victim of “unconstitutional selective prosecution.”
“The Biden Documents case is 100 times more different and more severe than mine,” Trump said. “I did nothing wrong and I cooperated far more.”
A ‘historic figure’
Hur’s report said that the materials recovered from Biden spanned his career in national office from 1973 when he became a U.S. senator, and through his two terms as vice president under former President Barack Obama from 2009 through early 2017.
Biden during his career “has long seen himself as a historic figure,” and during that time collected papers and artifacts that were connected to “significant issues and events in his career,” the report said.
“He used these materials to write memoirs published in 2007 and 2017, to document his legacy, and to cite as evidence that he was a man of presidential timber,” Hur wrote.
“As vice president, Mr. Biden received and stored classified materials at the White House, his official residence at the Naval Observatory, his private home in Delaware, and – very briefly – his rental home in Virginia. He relied on staff to help deliver, store, and retrieve these classified materials,” the report said.
“Mr. Biden was known to remove and keep classified material from his briefing books for future use, and his staff struggled — and sometimes failed — to retrieve these materials,” Hur wrote. “These gaps in the tracking and retrieval of Mr. Biden’s classified materials made it more difficult to determine when, how, and why many of the classified documents later found in Mr. Biden’s home and think tank ended up where they did not belong.”
“the Afghanistan documents were ultimately found in Mr. Biden’s Delaware home: in a badly damaged box in the garage, near a collapsed dog crate, a dog bed, a Zappos box, an empty bucket, a broken lamp wrapped with duct tape, potting soil, and synthetic firewood,” the report said.
Biden’s lawyer Richard Sauber, in a statement, said, “We are pleased that this investigation has concluded and that the Special Counsel [Hur] found ‘no criminal charges are warranted in this matter,’ even if the President were out of office and a private citizen.”
Sauber said the report recognized that Biden “fully cooperated” from the outset of the probe, and his team “promptly self-reported that classified documents were found” and returned to the government.
“The simple truth is President Biden takes classified information seriously and strives to protect it.” Sauber said. “He has spent decades at the highest levels of government defending and advancing America’s national security and foreign policy interests and protecting her secrets.”
Sauer said Biden disagreed with a “number of inaccurate and inappropriate comments” in the report. He did not identify those comments.
Biden’s timeline
On Nov. 2, 2022, Biden’s personal attorneys found documents bearing classified markings in a locked closet at the Penn Biden Center for Diplomacy and Global Engagement in Washington, D.C., the president’s lawyer said.
The files were discovered as the attorneys packed up and prepared to leave the think tank’s office, which Biden had “periodically” used as a private citizen before he launched his 2020 presidential campaign, according to Sauber.
The records appeared to date back to the Obama administration, in which Biden served as vice president from 2008 to 2016, Sauber said. The White House counsel’s office contacted the National Archives on the day the documents were uncovered, he added.
The statement from Biden’s special counsel came Jan. 9, 2023, after CBS News first revealed the existence of the classified records.
Three days later, Sauber disclosed that Biden’s attorneys had found additional classified documents in a storage space in the garage of Biden’s home in Wilmington, Delaware.
After making that discovery on Dec. 20, 2022, those attorneys contacted then-U.S. attorney for Chicago John Lausch, whom Garland had initially tapped to handle the matter, according to Bob Bauer, one of Biden’s personal lawyers.
On Jan. 11, 2023, Biden’s lawyers located another document with classified markings in a room adjacent to the Wilmington home’s garage, Bauer said.
They told Lausch about it the following morning, Bauer said. Later that same day, Garland announced he was appointing Hur as special counsel to investigate the matter.
The attorney general can appoint a special counsel in order to carry out an investigation or prosecution that could pose a conflict of interest if conducted by the Justice Department itself.
Hur was appointed by Trump in 2018 to serve as U.S. attorney for Maryland. He resigned in 2021, later becoming a partner at the Washington, D.C., office of law firm Gibson, Dunn and Crutcher.
The White House has defended its decision to withhold the discovery of the records for more than two months, saying it was balancing public transparency with the need to cooperate with an ongoing federal investigation.
