Special counsel passes on charging Biden but paints damning portrait of him

The special counsel investigating President Joe Biden’s handling of classified documents has concluded that no criminal charges are warranted in the matter and said they wouldn’t be even if the Department of Justice didn’t have a policy barring the prosecution of sitting presidents.

That conclusion was revealed in a 345-page report that the Justice Department released on Thursday.

But while the report withheld condemnation of Biden on legal grounds, it presented a harsh portrait of his conduct and mental faculties. Biden improperly took classified material related to the 2009 Afghanistan troop surge and shared classified information with the ghostwriter of his 2017 memoir. The report also includes photos of classified documents in insecure places, including a cardboard box in Biden’s garage and a filing cabinet under his TV.

In the report, Special Counsel Robert Hur, a well-respected former U.S. Attorney, explained the president’s “lapses in attention and vigilance demonstrate why former officials should not keep classified materials unsecured at home and read them aloud to others, but jurors could well conclude that Mr. Biden's actions were unintentional."

But he said that Biden would make a defense that many jurors would find sympathetic.

“[A] 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,” reads the report.

Biden’s memory lapse was a common theme throughout Hur’s report. He writes that Biden did not remember when he was vice president or, “even within several years,” when his son Beau died. Biden, Hur writes, “appeared hazy when describing the Afghanistan debate that was once so important to him.” He predicted that Biden’s attorneys “would emphasize these limitations in his recall” if they were called upon to defend him at trial.

One of those attorneys, Bob Bauer, took umbrage with the portrayal, accusing Hur of “essentially, ‘trashing’ the subject of an investigation” with extraneous, unfounded and irrelevant critical commentary.” Biden’s attorneys also wrote directly to Hur and his team before the report’s publication to complain about the focus on the president’s memory lapses. As documented in the report, they called the focus “gratuitous” and urged Hur to revise his summarizations, saying it was beyond his “expertise and remit.”

While Hur’s portrayal of Biden will no doubt provide ample fodder for the president’s critics, it also rebuts some anticipated criticisms head-on. The report notes that Biden cooperated with the federal probe. And in its very first pages, it drew a sharp contrast between the president and former President Donald Trump, who faces criminal prosecution for deliberately retaining classified material.

Trump allegedly refused to return classified documents for months and directed other people “to destroy evidence and then to lie about it,” reads Hur’s report. “In contrast, 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.”

Biden addressed the report during an appearance at a retreat for House Democrats on Thursday afternoon. “I was pleased to see the special counsel make clear the stark differences between this case and Trump's," he said, “The special counsel in my case decided against moving forward with any charges. This matter is now closed." He banged the podium with a fist.

Hur produced the report as part of his investigation into the discovery of classified documents at Biden’s home and think tank. The documents date back to Biden’s time as vice president and involve then-President Barack Obama’s decision to send more U.S. troops to fight in Afghanistan. As Vice President, Biden staunchly opposed the decision and believed history would exonerate his view. He saved “materials documenting his opposition to the troop surge,” including a handwritten classified memo he sent to President Obama.

The report also said that during Biden’s time as vice president, he created agita among his national security staff by mishandling classified briefing books and sometimes failing to return them. In the first six months of 2010, almost 30 classified briefing books “were outstanding,” according to the report. One staffer became so frustrated by the disappearances of books — or, in some cases, by the return of some books without all their contents — that she created more security procedures. But even after that, the team “continued to struggle to retrieve classified briefing books from Mr. Biden.”

Biden shared classified materials with the ghostwriter of his 2017 memoir, Promise Me, Dad. Investigators reviewed an audio recording of a conversation Biden had with the ghostwriter in February 2017, a month after he left office, where he told the writer that he “just found all the classified stuff downstairs.” He was referring to his home office.

Hur’s report said jurors could have been persuaded that Biden didn’t return those materials because he forgot he had them in his house.

“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,” the report reads. “And his 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.”

Richard Sauber, the special counsel to Biden, called elements of the Hur report “inaccurate and inappropriate” but noted that the White House was “pleased” with the conclusion. “The most important decision the Special Counsel made—that no charges are warranted—is firmly based on the facts and evidence,” Sauber wrote.