Joe Biden: Special counsel Hur won’t charge president in classified docs probe, despite evidence he ‘willfully retained’ materials

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A special counsel report released Thursday found evidence that President Joe Biden willfully retained and shared highly classified information when he was a private citizen, including about military and foreign policy in Afghanistan, but concluded that criminal charges were not warranted.

The report from special counsel Robert Hur resolves a criminal investigation that had shadowed Biden’s presidency for the last year. But its bitingly critical assessment of his handling of sensitive government records and unflattering characterizations of his memory will spark fresh questions about his competency and age that cut at voters’ most deep-seated concerns about his candidacy for re-election.

Beyond that, the harsh findings will almost certainly blunt his ability to forcefully condemn Donald Trump, Biden’s likely opponent in November’s presidential election, over a criminal indictment charging the former president with illegally hoarding classified records at his Mar-a-Lago estate in Florida. Despite abundant differences between the cases, Trump immediately seized on the special counsel report to portray himself as a victim of a “two-tiered system of justice.”

Yet even as Hur found evidence that Biden willfully held onto and shared with a ghostwriter highly classified information, the special counsel devoted much of his report to explaining why he did not believe the evidence met the standard for criminal charges, including a high probability that the Justice Department would not be able to prove Biden’s intent beyond a reasonable doubt, citing among other things an advanced age that they said made him forgetful and the possibility of “innocent explanations” for the records that they could not refute.

In remarks at the White House, Biden denied Hur’s assertion that he shared classified information, saying, “I did not share classified information. I did not share it with my ghostwriter.”

He also angrily lashed out at the special counsel for questioning his recollection of his late son Beau’s death from cancer. “How in the hell dare he raise that?” Biden asked, saying he didn’t believe it was any of Hur’s business.

And in response to Hur’s portrayal of him, Biden insisted to reporters that “My memory is fine,” and said he believes he remains the most qualified person to serve as president.

Biden’s lawyers blasted the report for what they said were inaccuracies and gratuitous swipes at the president. In a statement, Biden said he was “pleased” Hur had “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 pointedly noted that he had sat for five hours of in-person interviews in the immediate aftermath of Hamas’s October attack on Israel, when “I was in the middle of handling an international crisis.”

“I just believed that’s what I owed the American people so they could know no charges would be brought and the matter closed,” Biden said.

According to the report, the special counsel “uncovered evidence that President Biden willfully retained and disclosed classified information after his vice presidency when he was a private citizen. These materials included (1) marked classified documents about military and foreign policy in Afghanistan, and (2) notebooks containing Mr. Biden’s handwritten entries about issues of national security and foreign policy implicating sensitive intelligence sources and methods.

The materials were found in “the garage, offices, and basement den in Mr. Biden’s Wilmington, Delaware home,” the report said.

Read the full report below:

Still, Hur’s office felt that the “evidence does not establish Mr. Biden’s guilt beyond a reasonable doubt.”

Notably, Hur believed that at trial Biden could come across not only as “sympathetic,” but forgetful and not capable of the willfulness required to convict.

“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,” the 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.”

Garage box and storage closet of President Joe Biden

Garage box and storage closet of President Joe Biden’s garage taken on Dec. 21, 2022, in a photo released by the Department of Justice.

Department of Justice.

Attorneys for Biden blasted the special counsel’s characterization of the president’s memory and recollections during his two-day interview with investigators in October.

“We do not believe that the report’s treatment of President Biden’s memory is accurate or appropriate,” wrote Richard Sauber, special counsel to the president, and Bob Bauer, a personal attorney for the president. “In fact, there is ample evidence from your interview that the President did well in answering your questions about years-old events over the course of five hours.”

The attorneys noted that the interviews took place in the midst of the Oct. 7 attack on Israel, when Biden was busy “conducting calls with heads of state, Cabinet members, members of Congress, and meeting repeatedly with his national security team.”

“It is hardly fair to concede that the President would be asked about events years in the past, press him to give his ”best” recollections, and then fault him for his limited memory,” they wrote.

Biden, speaking Thursday afternoon in Virginia, noted the differences between his case and Trump’s, and how the special counsel in his probe had decided not to press charges.

“This matter is now closed,” Biden said.

Hur’s report said investigators found documents marked classified from as far back as the 1970s, including a box labeled “International Travel 1973-1979” containing materials from Biden’s trips to Asia and Europe that included “roughly a dozen marked classified documents that are currently classified at the Secret level.”

Interior of President Joe Biden

Interior of President Joe Biden’s garage storage closet containing Senate documents, Jan. 20, 2023, in a picture released by the Department of Justice.

Department of Justice

According to the report, among the classified documents Biden retained were materials documenting his opposition to the troop surge in Afghanistan, including a classified handwritten memo he sent President Obama over the 2009 Thanksgiving holiday, which FBI agents recovered from Biden’s Delaware home and its garage.

Asked in his interview with investigators about handwriting on a folder containing marked classified documents about Afghanistan, the report said Biden “identified the handwriting as his, but said he recalled nothing about how the folder or its contents got into his garage.”

The report lays out that Biden, in writing his 2007 and 2017 memoirs, worked with a ghostwriter, and in a recorded conversation with the ghostwriter a month after he left office, referenced the 2009 memo — saying that he had “just found all the classified stuff downstairs.”

At that time, Biden was renting a home in Virginia, the report says, and met the ghostwriter there to work on second memoir. He moved out of the Virginia home in 2019 and consolidated his belongings in Delaware, where the report says FBI agents later found the documents marked classified about the Afghanistan troop surge in his garage.

Blue folder labeled "Afghanistan" in a box in President Joe Biden's garage in a picture released by the Department of Justice.

Blue folder labeled “Afghanistan” in a box in President Joe Biden’s garage in a picture released by the Department of Justice.

Department of Justice

As such, the report says “evidence supports the inference,” that when Mr. Biden said the comment in 2017, he “was referring to the same marked classified documents about Afghanistan that FBI agents found in 2022 in his Delaware garage.”

The report also said that Biden “created” his own classified documents via his own handwritten notes in notebooks and notecards, some of which Biden brought home with him and stored in “unsecured locations that were not authorized to store classified information– even though the notebooks.”

The report said Biden used notebooks filled with sensitive materials to write his 2017 memoir, allegedly acknowledging to his ghostwriter that some of the documents he relied on might be classified.

“In writing ‘Promise Me, Dad,’ Mr. Biden relied extensively on the notebooks containing the notes he took during his vice presidency,” said the report. The notebooks contained “notes of meetings Mr. Biden attended as well as entries about his other activities during this period. Many of the meetings related to foreign policy and classified information, including the President’s Daily Brief, National Security Council meetings, and other briefings. Some of these entries remain classified up to the Secret level,” said the report.

Hur’s long-anticipated report was released Thursday, hours after the White House reviewed the document and announced that “in keeping with his commitment to cooperation and transparency,” the president would not assert executive privilege over any portion of the report.

Ian Sams, a spokesperson for the White House counsel’s office, said in a statement that the president’s legal team had completed a review of the report and that “in keeping with his commitment to cooperation and transparency,” the president would not assert executive privilege over any portion of the report.

Attorney General Merrick Garland earlier this week informed key lawmakers that Hur had concluded his investigation, which examined how approximately two dozen classified documents wound up at Biden’s personal home and office.

Attorney General Merrick Garland appears before a House Judiciary Committee hearing on Sept. 20, 2023, on Capitol Hill in Washington.

AP Photo/Jacquelyn Martin

The records in question date back to Biden’s time as vice president, and at least some include “top secret” markings, the highest level of classification.

Garland appointed Hur as special counsel in January of 2023, after aides to the president discovered a batch of ten documents at the Penn-Biden Center in Washington, D.C., where Biden kept an office after his vice presidency.

A second discovery of additional records in the garage of Biden’s Wilmington, Delaware, home precipitated Garland’s decision to assign Hur as special counsel, ABC News reported at the time.

The report stated that “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.”

Investigators interviewed as many as 100 current and former officials, including Secretary of State Antony Blinken, former White House Chief of Staff Ron Klain, and Hunter Biden, the president’s son. In October, Hur’s team spent two days interviewing Biden himself.

ABC News previously reported that sources who were present for some of the interviews, including witnesses, said that authorities had apparently uncovered instances of carelessness from Biden’s vice presidency, but that — based on what was said in the interviews — the improper removal of classified documents from Biden’s office when he left the White House in 2017 seemed to be more likely a mistake than a criminal act.

The White House had emphasized from the beginning that it would cooperate with investigators. Biden himself repeatedly denied any personal wrongdoing and said he was “surprised” to learn of the documents’ existence.

The Hur investigation has played out quietly against the backdrop of special counsel Jack Smith’s inquiry into former President Donald Trump’s handling of classified records, which culminated last year in a 40-count indictment, to which Trump has pleaded not guilty.

Trump has sought to link his circumstances to Biden’s by trying to draw an equivalence between their conduct and calling his prosecution the result of a justice system improperly targeting Republicans.

But records subsequently released by the National Archives indicate that Biden’s legal team cooperated with National Archives officials, whereas federal prosecutors have accused Trump of deliberately withholding records he knew to be classified from investigators with the National Archives and, later, the FBI.

Hur’s report drew that distinction, saying, “Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. 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.”

“In contrast,” the report said, “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 Associated Press contributed to this report.

Copyright © 2024 ABC News Internet Ventures.

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