The Biden classified docs report, explained

An earlier version of this article was published in the On the Trail 2024 newsletter. Sign up to receive the newsletter in your inbox on Tuesday and Friday mornings here. To submit a question to next week’s Friday Mailbag, email onthetrail@deseretnews.com.

Good morning and welcome to On the Trail 2024, the Deseret News’ campaign newsletter. I’m Samuel Benson, Deseret’s national political correspondent.

3 things to know

1. Donald Trump won the Nevada caucus last night in an uncompetitive race. Only one other Republican, Ryan Binkley, appeared on the ballot; Nikki Haley participated in Tuesday’s primary. Read more here.

2. The Supreme Court held hearings Thursday about individual states’ ability to remove Trump from the ballot. The justices seemed very skeptical — most of the questioning did not deal with Trump’s culpability for charges of insurrection, but the legality of barring his name from state ballots. More here.

3. The Department of Justice released a report relating to its investigation of President Joe Biden, after classified documents were found at Biden’s Delaware home and elsewhere last year. The big takeaway: even the special counsel won’t seek charges against Biden. The report won’t help Biden politically, as it characterized Biden as an elderly man who exhibits “diminished faculties and faulty memory.” Read more.

The Big Idea

Biden’s classified docs, explained

The two major themes in the Department of Justice’s classified documents report: Biden won’t be charged, and Biden’s memory is failing.

The opening sentences in special counsel Robert Hur’s report declare that “no criminal charges are warranted” — and Biden isn’t getting favorable treatment just because he’s the president. “We would reach the same conclusion even if Department of Justice policy did not foreclose criminal charges against a sitting president,” Hur wrote, referring to the longstanding DOJ policy prohibiting prosecution against presidents. (Donald Trump is trying to make a similar legal argument about presidential immunity and extend it post-administration, which a federal court shot down this week.)

But the 345-page report does not withhold examples of Biden being flippant in his handling of confidential documents. On page 7, Biden “read from classified entries aloud to his ghostwriter nearly verbatim’’ at least three times. On page 45, during the second year of Obama’s first term, nearly 30 classified briefing books loaned to then-Vice President Biden were “outstanding,” some of them never recovered. And on page 126, an image of classified documents stored in a bulging cardboard box, the edges torn, next to an old treadmill and a wicker basket.

These aren’t the revelations that will be most damaging to Biden politically, though. Hur determined that charges should not be leveled against the president. A significant justification, though, for Hur’s decision was Biden’s faulty memory. He displayed “diminished faculties and faulty memory,” Hur wrote: “(Biden’s) cooperation with our investigation, including by reporting to the government that the Afghanistan documents were in his Delaware garage, will likely convince some jurors that he made an innocent mistake, rather than acting willfully — that is, with intent to break the law — as the statute requires.”

Throughout Biden’s 2023 interviews with investigators and in taped 2017 conversations with his ghostwriter, Biden shows significant mental lapses. He struggles to remember which years he was vice president. He fails to remember the year in which his son, Beau, died.

If Biden were to be put on trial, Hur continued, he “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.”

Legally, that’s the best scenario for Biden; politically, it’s the worst. Biden already faces concerns about his age from a growing proportion of Americans. A recent NBC poll suggests that Biden’s age and fitness are the top concerns of voters — over 75% of voters, including half of Democrats, have concerns about Biden’s mental and physical health. Within hours of the report’s release, Nikki Haley called on Biden to take a mental competency test.

All this comes at a time when Trump, too, is accused of mishandling classified documents. The report was easy fodder for Trump, who declared the verdict evidence of a “two-tiered system of justice” and “selective prosecution.” While Hur made it clear his focus was Biden, not Trump, he offered one clear distinction — Biden willfully returned the documents when they were discovered and invited an investigation; Trump allegedly obstructed justice, refused to return the documents and now faces 37 felony charges.

Trump, of course, refuted the distinction. Biden had “50 times” more documents, Trump said in a statement; later, in an interview with Fox News, he said the Biden case is “100 times more severe.”

But it likely won’t be the legal arguments that voters follow most closely. It will be the stark allegations of Biden’s dwindling mental capacity. In a November election, Americans will likely decide between Biden and Trump, both of whom have made headlines in recent weeks for displays of mental incompetency. Hur isn’t a psychologist or a medical professional, and his report is not a diagnosis. For many voters, though, that may be too low of a bar.

Weekend reads

AI is dead! Kind of. The FCC has now outlawed AI-generated robocalls imitating politicians, an issue that’s cropped up this election cycle: fake voices of Haley and Tim Scott on the radio claiming to be “woke”; a fake Biden voice telling New Hampshire Democrats not to vote.

Yes, there are Democrats in Wyoming, and this conversation with the state’s Democratic Party chair is interesting. The party’s biggest hurdle, he says, is not fundraising or turnout organizing; it’s helping people overcome the fear of telling their neighbors they are Democrats in a deep-red state. ‘A Palpable Fear of Even Letting Your Friends Know You Are a Democrat’ (Peder Schaefer, Politico)

Presidential immunity, explained: This podcast from The Dispatch is very helpful in breaking down the recent federal court decision shutting down Trump’s presidential immunity claims. Take a listen: Indictment Watch: No Immunity (Sarah Isgur and David French, The Dispatch)

Have a question for the next Friday mailbag? Drop me a line at onthetrail@deseretnews.com.

See you on the trail.

Editor’s Note: The Deseret News is committed to covering issues of substance in the 2024 presidential race from its unique perspective and editorial values. Our team of political reporters will bring you in-depth coverage of the most relevant news and information to help you make an informed decision. Find our complete coverage of the election here.