Biden classified documents: What special counsel report says about ‘willful retention’

Just hours after the release of a special counsel’s report on a document-retention case, President Joe Biden called a prime-time press conference to applaud the counsel’s decision not to prosecute him and to rebut the report’s suggestion that aging has left him with "a poor memory."

Biden said media reports were misrepresenting the special counsel’s conclusion.

"I’ve seen headlines since the report was released about my willful retention of documents," he said Feb. 8. "This … assertion is not only misleading but just plain wrong."

What the special counsel found is more complicated than Biden described. 

Yes, Special Counsel Robert Hur decided against pursuing criminal charges. However, the report states clearly that the special counsel found evidence that Biden did willfully retain classified documents. The decision not to prosecute was based on how likely it was that Biden could win over enough jurors to be found not guilty at trial.

The special counsel’s report is worded carefully.

Near the top of the executive summary, the report said the investigation "uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen." 

The executive summary specifies two categories of material at issue: classified documents about Afghanistan and handwritten notebooks that included references to sensitive intelligence sources and methods. The FBI found these materials in the garage, offices and basement den of Biden's Wilmington, Delaware, home. 

"There is evidence that when Mr. Biden left office in 2017, he willfully retained his classified notebooks — that is, he knew he kept classified information in notebooks stored in his house and he knew he was not allowed to do so," the report said. "There is also evidence that Mr. Biden willfully disclosed classified information in his notebooks to his ghostwriter by reading it aloud to him."

Biden’s actions, the report said, "risked serious damage to America's national security."

This portion of the report suggests the special counsel team believed Biden had committed a crime. But the special counsel was tasked not just with finding facts, but with deciding whether at least one charge should be prosecuted in court.

Ultimately, Hur decided that Biden’s defenses would likely be enough to convince one or more jurors that he didn’t commit a crime, dooming the required unanimous verdict for a conviction. 

This type of prosecutorial decision is akin to a risk-benefit analysis, based on prosecutors’ experience with how juries will respond at trial to certain types of evidence.

"If the quantum of evidence doesn’t meet that standard, you decline to prosecute," said Joan Meyer, a partner at the law firm Thompson Hine LLP. "No one wants a high-profile loss in court."

The special counsel report noted several defenses that Biden could make that would make it hard to reach a unanimous guilty verdict. These included Biden’s consistent cooperation with the special counsel’s investigation, which a jury might interpret as an innocent man’s actions, to his forgetfulness, an issue on which Biden vigorously countered at his press conference.

"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 report said.

The special counsel also factored into its prosecution decision that at least one former president, Ronald Reagan, also took home diaries that likely included classified information and was not prosecuted for it.

A potential Biden defense could also note that the special counsel cleared Biden of wrongdoing for other sets of documents at the University of Pennsylvania and other parts of Biden’s Delaware home.

In addition, the special counsel on several occasions acknowledges a "shortage of evidence" even as he lays out details about the handling of the Afghanistan documents, which comprise the most serious legal threat to Biden in the report. If the case had gone to trial, the use of this language in the report could have helped Biden.

Collectively, these potential defense arguments would make it hard for prosecutors to make a jury agree unanimously that Biden was guilty beyond a reasonable doubt, which is the standard for a criminal trial conviction.

White House spokesperson Ian Sams, in a Feb. 9 press conference, seemed to acknowledge the fine distinctions by saying the special counsel concluded that "there was no case." This places the focus on the prosecutorial decision rather than a question of guilt or innocence.

The special counsel "reached the inevitable conclusion based on the facts and the evidence that there was no case here," Sams said. "And this is important to think about in context of how this report is being viewed and by many of you being covered. This is the first special counsel investigation ever that hasn't indicted anyone. Every theory was explored. But the facts and the evidence disputed though the decision was that there was no case to be made."

In the legal system, it’s common for people to hover between innocence and guilt, said Ric Simmons, an Ohio State University law professor.

Consider a defendant who is arrested while holding an illegal handgun. Say a court eventually ruled that the police search violated the Fourth Amendment, which guards against unreasonable government searches and seizures. If that happened, there would be a good chance the prosecution would forgo a trial for lack of evidence. 

Or consider an impoverished mother who steals baby food to feed her child. Given the defendant’s backstory, "no jury would convict," Simmons said.

"The best way to think about these cases is that the individual is factually guilty — there is sufficient evidence to prove to an objective evaluator that the defendant committed all the elements of the crime beyond a reasonable doubt — but that they are not and never will be legally guilty," Simmons said.

In Biden’s case, the special counsel appears to believe Biden is factually guilty even if he isn’t confident it could prove at trial that Biden is legally guilty. 

"Whether Biden did or did not willfully retain and disclose classified documents is at this point a disputed issue of fact," Simmons said. "The special counsel says he did. Biden says he did not. One of them is wrong, and unless this is proven in court one way or the other, or Biden ultimately admits to the willfulness, we will never know for sure which of them is wrong."

Biden stopped short of using the word "exonerate," a word his predecessor and likely 2024 presidential race rival, Donald Trump, used to describe the report of a different special counsel, Robert Mueller, in an investigation of connections between Trump and Russia.

If Biden meant to imply that he’s been exonerated, that would go too far, Meyer said.

"The report did not exonerate Biden," she said. "It found that he used sloppy procedures to handle classified materials and that he retained them, most importantly the handwritten notebooks of his vice presidency, to write a book."