Among the reasons stated for not pressing charges was that Biden would present to the jury ‘as sympathetic, well-meaning, elderly man with a poor memory.’
President Joe Biden will not be criminally charged for allegedly mishandling documents, announced Special Counsel Robert Hur on Feb. 8.
The materials, stated the report, included “marked classified documents about military and foreign policy in Afghanistan, and notebooks containing Mr. Biden’s handwritten entries about issues of national security and foreign policy implicating sensitive intelligence sources and methods.” The FBI collected these items during a search of President Biden’s Wilmington, Delaware, residence last year.
The FBI last year also searched the president’s Rehoboth Beach, Delaware, home, where they also found classified materials.
Nonetheless, Mr. Hur said that “the evidence does not establish Mr. Biden’s guilt beyond a reasonable doubt” and that “prosecution of Mr. Biden is also unwarranted based on our consideration of the aggravating and mitigating factors set forth in the Department of Justice’s Principles of Federal Prosecution.”
The decision to pass on charging President Biden for allegedly mishandling classified materials contrasts with former President Donald Trump allegedly doing so after leaving the White House in January 2021, leading to a raid on his Mar-a-Lago estate in 2022. Special Counsel Jack Smith charged President Trump last year for allegedly mishandling classified documents. President Trump has pleaded not guilty; the trial will begin on May 20.
The classified documents are from President Biden’s over four-decade career in politics that has included the Senate, the vice presidency, and now the presidency.
Mr. Hur interviewed President Biden over the span of two days last year.
In deciding not to charge the president, Mr. Hur said that a jury would likely not convict the president in part due to his cognitive issues.
“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,” wrote Mr. Hur.
“Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt,” he continued. “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.”
The Afghanistan documents, which had the highest level of classification in the United States, were from 2009. These papers were in a Virginia home that he rented in 2019 and where he met with his ghostwriter for his two books before they were sent to Delaware.
“Nevertheless, we do not believe this evidence is sufficient, as jurors would likely find reasonable doubt for one or more of several reasons,” wrote Mr. Hur.
“Both when he served as vice president and when the Afghanistan documents were found in Mr. Biden’s Delaware garage in 2022, his possession of them in his Delaware home was not a basis for prosecution because as vice president and president, he had authority to keep classified documents in his home,” he continued.
Moreover, wrote Mr. Hur, “The best case for charges would rely on Mr. Biden’s possession of the Afghanistan documents in his Virginia home in February 2017. when he was a private citizen and when he told his ghostwriter he had just found classified material.”
President Biden’s forgetfulness could be a rationale for unintentionally keeping the classified information, according to Mr. Hur.
Additionally, the FBI found notebooks from President Biden’s time as vice president that he knew “contained classified information,” wrote Mr. Hur.
Nonetheless, said Mr. Hur, the evidence would not “meet the government’s burden at trial—particularly the requirement to prove that Mr. Biden intended to do something the law forbids.”
“[W]e expect Mr. Biden’s defense at trial would be that he thought his notebooks were his personal property and he was allowed to take them home, even if they contained classified information.”
In addition to President Biden’s Delaware homes and the rented Virginia home, classified documents were also found at the Penn Biden Center and the University of Delaware.
Biden’s Actions Contrast with Trump’s: Hur
Mr. Hur stated that there was a difference between President Biden and President Trump allegedly mishandling classified information. Whereas President Biden did not willfully take classified documents, said Mr. Hur, President Trump allegedly did.
“Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite,” wrote Mr. Hur.
Mr. Hur went on to say that, per the indictment against President Trump, the former president allegedly declined to return the classified materials and even had some destroyed.
“In contrast, Mr. Biden alerted authorities, turned in classified documents to the National Archives and the Department of Justice in 2022 and 2023, consented to the search of multiple locations including his homes, permitted the seizure and review of handwritten notebooks he believed to be his personal property, and in numerous other ways cooperated with the investigation,” said Mr. Hur.
In response to the report, President Biden claimed vindication.
“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,” he said in a statement.
“I just believed that’s what I owed the American people so they could know no charges would be brought and the matter closed,” he added.
Meanwhile, President Trump blasted the decision by Mr. Hur to not charge President Biden and lamented what he viewed as a double standard.
“THIS HAS NOW PROVEN TO BE A TWO-TIERED SYSTEM OF JUSTICE AND UNCONSTITUTIONAL SELECTIVE PROSECUTION! The Biden Documents Case is 100 times different and more severe than mine. I did nothing wrong, and I cooperated far more. What Biden did is outrageously criminal,” he said in a statement.
Members of Congress expressed mixed reactions as Republicans blasted the decision not to charge the president, while Democrats came to his defense.
“Americans expect equal justice under the law and are dismayed the Justice Department continues to allow Joe Biden to live above it,” House Oversight Committee Chairman James Comer (R-Ky.) said in a statement.
“Joe Biden willfully retained classified documents for years in unsecure locations and intentionally disclosed them yet faces no consequences for his actions,” he continued.
“No charges for the Big Guy. The two-tiered justice system hard at work,” posted Sen. Roger Marshall (R-Ks.) on X, formerly Twitter.
Rep. Andy Biggs (R-Ariz.), wrote on X: “Biden’s Department of Justice won’t prosecute you if they think you’re too senile. This is flat out embarrassing.”
“Democrats want there to be two tiers of justice: one if your last name is Trump and another if it’s Biden. Republicans are united in opposing weaponized justice and partisan lawfare,” posted Rep. Rudy Yakym (R-Ind.) on X.
However, Rep. Don Beyer (D-Va.) cited Mr. Hur’s differentiation between President Biden and President Trump allegedly mishandling classified information, saying that the former returned classified documents immediately upon discovery whereas the latter did not.
Finally, President Biden’s lawyers blasted the report.
Ahead of the report’s release, in a letter to Mr. Hur and Deputy Special Counsel Marc Krickbaum, President Biden’s personal lawyer, Bob Bauer, and the president’s special counsel, Richard Sauber, stated that while they are pleased their client did not get charged, they took issue with some of the main points in the report.
Mr. Bauer and Mr. Sauber objected to the findings about President Biden’s memory being poor. They contended the president “did well in answering your questions about years-old events over the course of five hours.”
President Biden’s lawyers also said that their client’s “inability to recall dates or details of events that happened years ago is neither surprising nor unusual, especially given that many questions asked him to recall the particulars of staff work to pack, ship, and store materials and furniture in the course of moves between residences.”
Additionally, the lawyers took issue with Mr. Hur for using President Biden’s comments against him about President Trump being “totally irresponsible” in allegedly mishandling classified information.