Special counsel Robert Hur has declined to prosecute President Joe Biden for his handling of classified documents, but said Biden’s practices “present serious risks to national security,” and added that Biden portrayed himself as an “elderly man with a poor memory” who would be sympathetic to a jury.
“Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen,” the report said, but the evidence “does not establish Mr. Biden’s guilt beyond a reasonable doubt.”
About a month after he left office as vice president, in a recorded conversation with his ghostwriter in February 2017, Biden remarked that he “just found all this classified stuff downstairs,” the report said. Biden was believed to have been referencing classified documents about the Afghanistan troop surge in 2009, which Biden opposed.
Bidens’ memory, Hur’s report said, “was significantly limited” during his 2023 interviews with the special counsel.
“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,” it said. “Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. 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.”
Hur’s report said there were “clear” material distinctions between a potential case against Biden and the pending case against Trump, noting that unlike “the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts.”
Most notably, they wrote, “after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite.” On the other hand, they wrote, “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.”
Hur’s report does explain at length where the facts of the Biden investigation are similar to the charges brought against Trump.
“For all of the classified materials recovered during this investigation, after the vice presidency, Mr. Biden did not receive a written waiver of the need-to-know requirement, and no agency official made the findings required by the executive order,” the report states.
The announcement tops off a lengthy saga that began in November 2022, after one of Biden’s personal attorneys found classified documents that appeared to be from the Obama administration at the Penn Biden Center for Diplomacy and Global Engagement, which Biden had used as a personal office after his vice president term concluded. Classified documents were later also found at Biden’s Delaware home.
The existence of classified documents at Biden’s home and former office were first reported in January 2023. CBS News first reported the existence of the documents at the Penn Biden Center.
Attorney General Merrick Garland in January 2023 announced that he would appoint Hur as special counsel to oversee the investigation into Biden, saying the appointment authorized him “to investigate whether any person or entity violated the law in connection with this matter.”
Biden was interviewed in October as part of the investigation, the White House said. The interview was voluntary, according to White House spokesman Ian Sams.
“As we have said from the beginning, the President and the White House are cooperating with this investigation, and as it has been appropriate, we have provided relevant updates publicly, being as transparent as we can consistent with protecting and preserving the integrity of the investigation,” Sams said at the time.
NBC News has also previously reported that the special counsel had interviewed Hunter Biden as well, according to a source familiar with the matter.
With Hur’s announcement, Donald Trump remains the only president in history to face criminal charges, which included seven criminal charges in connection with mishandling classified documents found at Mar-a-Lago. According to the indictment in that case, Trump had more than 100 classified documents at his Florida home, including documents with “Top Secret” classification markings.