WASHINGTON — 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.”
Later in the report, the special counsel said that the president’s memory was “worse” during their interview with him, compared to his memory in recorded conversations from 2017.
“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.
Biden also had difficulty remembering the timing of his son Beau’s death, as well as a debate about Afghanistan.
“He did not remember, even within several years, when his son Beau died,” the report said.
In a Monday letter to Hur and his deputy special counsel, Richard Sauber, special counsel to the president, and Bob Bauer, Biden’s personal counsel, refuted how the report characterized the president’s memory.
“We do not believe that the report’s treatment of President Biden’s memory is accurate or appropriate,” Sauber and Bauer wrote in the letter, which was also released on Thursday. “The report uses highly prejudicial language to describe a commonplace occurrence among witnesses: a lack of recall of years-old events.”
Separately, Sauber responded to the report by saying the White House is “pleased” it has concluded and that there were no criminal charges.
“As the Special Counsel report recognizes, the President fully cooperated from day one,” he said in a statement. “His team promptly self-reported the classified documents that were found to ensure that these documents were immediately returned to the government because the President knows that’s where they belong.”
Sauber went on to appear to criticize the report but raised no specific points.
“We disagree with a number of inaccurate and inappropriate comments in the Special Counsel’s report,” Sauber said in his statement. “Nonetheless, the most important decision the Special Counsel made—that no charges are warranted—is firmly based on the facts and evidence.”
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.
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.