Criminal Justice

Special counsel: No charges for Biden in classified documents probe

  • Print

AP Biden January 2023

President Joe Biden waves before boarding Air Force One at the El Paso International Airport in El Paso, Texas, on Jan. 8, 2023, to travel to Mexico City. (Photo by Andrew Harnik/The Associated Press)

UPDATED 3:50 P.M.: Joe Biden carelessly handled classified materials found at his home and former office after his vice presidency and shared government secrets with his ghostwriter, but that evidence was not strong enough to justify charging him with crimes, according to a long-awaited special counsel report released Thursday.

The 345-page Justice Department finding ends an investigation that has hung over the president’s head for more than a year. The report could prove to be a political liability, however, because it describes President Biden, 81, as a forgetful old man who kept notebooks and documents with classified information at his home- a stinging characterization that will likely be used against him by Republicans.

Biden, in a written statement, defended himself as someone who has always taken seriously the protection of national security secrets.

“I cooperated completely, threw up no roadblocks, and sought no delays. In fact, I was so determined to give the Special Counsel what they needed that I went forward with five hours of in-person interviews over two days” amid the U.S. government response to an international crisis, Biden said, referring the Hamas’s Oct. 7 attack on Israel. “I just believed that’s what I owed the American people so they could know no charges would be brought and the matter closed.”

Special counsel Robert K. Hur, who interviewed the president at the White House himself, found evidence that Biden “willfully retained and disclosed classified materials after his vice presidency when he was a private citizen” but concluded that evidence “does not establish Mr. Biden’s guilt beyond a reasonable doubt.”

Hur’s team said prosecuting Biden would be “unwarranted based on our consideration of the aggravating and mitigating factors” laid out in Justice Department prosecution policies.

To secure a conviction, officials would need to prove to a jury that Biden retained the information willfully. Investigators examined why Biden first told his ghost writer that he had classified information in his possession back in 2017, but didn’t report it to authorities.

Ultimately, the report said a jury would find Biden to be a sympathetic figure and “a well-meaning, elderly man with a poor memory.” Prosecutors also suggested it might not have struck Biden as noteworthy that he was in possession of classified documents so soon after his term as vice president had ended.

Hur’s report said 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.”

Richard Sauber, a lawyer for Biden on the documents case, said he was pleased the investigation has ended without charges, emphasizing in a statement that the president “fully cooperated from day one.” Sauber said every administration ends with packing mistakes involving documents, and Biden’s was no different.

Sauber went on, however, to criticize Hur for “a number of inaccurate and inappropriate comments” in the report. “Nonetheless, the most important decision the Special Counsel made-that no charges are warranted-is firmly based on the facts and evidence,” he said.

The special counsel team conducted 173 interviews with 147 witnesses, including Biden, and collected millions of documents to compile the report. They said that Biden cooperated with investigators and consented to multiple searches of his properties.

The Justice Department has long had a policy that sitting presidents cannot be accused, charged, or prosecuted for an alleged crime. But officials said in the report that they would have still decided not to pursue charges even if current Justice Department guidance permitted charging a sitting president.

Attorney General Merrick General appointed Hur as special counsel in January 2023 after Biden’s aides said they discovered the materials when they searched his home and office.

At the time, a separate investigation was underway into former president Donald Trump’s alleged mishandling of classified documents—a probe that led to 40 federal criminal counts against Trump, including willful retention of national defense secrets and obstruction of justice.

Hur’s report does not shy away from the fact that Trump is being prosecuted for his documents while Biden is not; the special counsel argues that the different facts of the two cases lead to different charging decisions.

“With one exception, there is no record of the Department of Justice prosecuting a former president or vice president for mishandling classified documents from his own administration. The exception is former President Trump,” the report said.

“Unlike the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating factors,” the report continues. Most notable among those: “after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite.”

Garland has said the special counsel appointments were necessary because both Trump and Biden had indicated they would be running for president in 2024.

Hur’s report portrayed Biden as well-intentioned, but sometimes hapless and forgetful, a man who had access to classified materials throughout his decades-long government career. Biden saved notebooks from his time as vice president that contained classified information, according to the report, and used those notebooks to craft his 2017 memoir with a ghostwriter. The special counsel noted the published books ultimately did not contain classified information.

Prosecutors concluded Biden saved some of the material because he believed he was an important figure in U.S. history and wanted that history to reflect that he opposed sending more troops to Afghanistan in 2009. Biden, the report said, “always believed history would prove him right.”

Some of the classified documents were classified “top secret/sensitive compartmented information,” a category reserved for particularly sensitive material. They included papers that related to Afghanistan, including a 2009 memo he sent to then-President Obama in “a last ditch effort to persuade him not to send additional troops to Afghanistan,” the report said.

The report noted that in a recorded conversation with his ghostwriter in early 2017, shortly after his term as vice-president ended, Biden said he had “just found all the classified stuff downstairs.” At the time, Biden was living in a rented home in Virginia.

“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 said.

John Wagner contributed to this report.

Give us feedback, share a story tip or update, or report an error.