5 Takeaways From the Biden Classified Documents Investigation Report


Attorney General Merrick B. Garland on Thursday released the report by Robert K. Hur, the special counsel Mr. Garland had assigned to investigate how classified documents ended up in an office formerly used by President Biden and in his home in Delaware. Here are some takeaways.

Mr. Hur was bound by a Justice Department policy that holds that the Constitution implicitly makes sitting presidents temporarily immune from prosecution, so he could not have charged Mr. Biden even if he wanted to. But Mr. Hur wrote that Mr. Biden should not be charged regardless.

“We conclude that no criminal charges are warranted in this matter,” he wrote. “We would reach the same conclusion even if Department of Justice policy did not foreclose criminal charges against a sitting president.”

Mr. Hur wrote that he had found evidence that Mr. Biden had willfully retained and disclosed sensitive information after he left the vice presidency in 2017. But he said the evidence fell short of what would be necessary to “establish Mr. Biden’s guilt beyond a reasonable doubt.”

Mr. Hur listed various reasons that a jury might reasonably doubt that Mr. Biden had “willfully” retained classified documents after leaving the Obama White House, including that Mr. Biden had reported the problem and invited investigators to search his home. But Mr. Hur cited another reason with potentially explosive political implications for the 81-year-old president as he seeks re-election: that he has memory problems.

Mr. Hur wrote that Mr. Biden’s memory “appeared to have significant limitations.” The special counsel portrayed Mr. Biden’s recorded conversations with his ghostwriter in 2017 as “often painfully slow, with Mr. Biden struggling to remember events.” And, the report said, his recollection “was worse” in his interview with Mr. Hur in October, when Mr. Biden came off, he said, “as a sympathetic, well-meaning, elderly man with a poor memory.”

Specifically, the report quoted Mr. Biden saying on the first day of the interview, “if it was 2013 — when did I stop being vice president?” On the second day, the report recounted, Mr. Biden seemed to forget when his term began and ended, asking, “in 2009, am I still vice president?”

It said Mr. Biden “did not remember, even within several years, when his son Beau died” and mistakenly said that in the debate over sending more troops to Afghanistan, he had differed with a general who in fact had been an ally in that dispute.

In a letter appended to the report, a White House lawyer and a personal lawyer to Mr. Biden, Richard Sauber and Bob Bauer, disputed Mr. Hur’s characterizations. They noted that the five-hour interview had taken place in the immediate aftermath of the Oct. 7 terrorist attacks on Israel, after Mr. Biden had spent hours talking to foreign heads of state. The lawyers called the prosecutor’s observations inaccurate, and gratuitous for a report finding insufficient evidence to bring charges.

“The president’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,” they wrote. They noted that other witnesses had also displayed “predictable memory loss” without being similarly portrayed in the report.

Mr. Hur’s report sharply distinguished the investigation into Mr. Biden from the prosecution of former President Donald J. Trump on charges of mishandling classified material after leaving office and obstructing the government’s effort to retrieve it.

“Several material distinctions” between the two cases were clear, and the allegations against Mr. Trump, if proven, “present serious aggravating facts” unlike the evidence involving Mr. Biden, Mr. Hur wrote. In particular, he said, the two men had responded very differently to the situations.

“Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite,” Mr. Hur’s report said. “According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it.”

He added: “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.”

The investigation focused in part on some government documents about the Afghanistan war that were marked as classified, which investigators found in a tattered cardboard box with a jumble of other items in Mr. Biden’s garage in Delaware.

But Mr. Hur found no evidence showing that Mr. Biden knew they were there. He wrote that the “strongest case for criminal charges against Mr. Biden” related to those documents would instead be to accuse him of knowingly possessing them without authorization earlier, at a house he rented in Virginia after he left the vice presidency.

Mr. Hur obtained an audio recording of Mr. Biden on Feb. 16, 2017 — nearly a month after the Obama administration ended — telling Mark Zwonitzer, the ghostwriter with whom he was working on a memoir, that he had “just found all the classified stuff downstairs.”

The context of his remark was a discussion of how Mr. Biden had sent President Barack Obama a handwritten memo opposing Mr. Obama’s decision to send a surge of troops into Afghanistan in 2009, although the book did not address that issue.

But Mr. Hur said that the available evidence was “insufficient to meet the government’s burden in a criminal prosecution.” Among other things, there was no proof that the Afghanistan papers found in Mr. Biden’s Delaware garage had been at his Virginia house, nor that Mr. Biden had been referring to those papers specifically in the audio recording.

“We do not know why, how, or by whom the documents were placed in the box,” Mr. Hur wrote.

A particular dispute arose over personal diary entries that Mr. Biden had made in handwritten notebooks. These items included a mix of both personal matters — including “gut-wrenching passages about his son’s death,” the report said — and entries about Situation Room meetings that involved national security and foreign policy, “implicating sensitive intelligence sources and methods.”

On several occasions, Mr. Biden read to Mr. Zwonitzer handwritten entries about National Security Council meetings at which intelligence and military information was discussed. Once he described a meeting — but not his notes — as classified, and on another occasion he showed the ghostwriter a word he could not read but warned that “some of this may be classified, so be careful.”

Mr. Hur wrote that this was evidence that Mr. Biden had disclosed classified information to Mr. Zwonitzer and “cannot be justified,” but also that the “evidence falls short of proving that Mr. Biden did so willfully — that is, that he knew these notebook passages were classified and that he intended to share classified information with Zwonitzer.”

Mr. Hur also characterized Mr. Biden’s “decision to keep his notebooks at home in unlocked and unauthorized containers” as “totally irresponsible,” using the same phrase — as Mr. Hur noted — that Mr. Biden had used in denouncing Mr. Trump for keeping classified government documents at his Mar-a-Lago club and residence in Florida.

Mr. Hur also said prosecutors would likely be unable to prove at any trial that Mr. Biden knew his handling of the notebooks had broken any law because he thought of them as personal property that he was allowed to take home after his vice presidency, and “enough evidence supports this defense to establish reasonable doubt.”

Mr. Hur described at length how other presidents since the enactment of the Presidential Records Act in 1978, starting with Ronald Reagan, had taken home upon leaving office diaries containing classified information that they kept while president, and how relevant government agencies have known about and accepted that practice.



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