Biden won’t be charged in classified documents case, but special counsel report questions his memory

A special counsel investigating President Joe Biden’s handling of classified documents concluded that no criminal charges were warranted. However, Robert Hur in his final report criticized Biden’s practices in handling sensitive documents, saying he had found evidence that Biden had "willfully retained and disclosed classified materials" as a private citizen after he served as vice president.

In a 388-page report, the special counsel also dwelled on Biden’s lapses in memory, writing that "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 portrayal of Biden, who is 81 as he seeks another term, offers useful campaign material for Biden’s likely opponent, former President Donald Trump, 77, and the characterization drew strong White House criticism in a letter appended to the special counsel’s report.

But the report also preempted comparisons with Trump, stating that Trump’s own classified documents prosecution — which a separate special counsel, Jack Smith, is handling — has "several material distinctions" from Biden’s. A big one is that Biden cooperated with the investigation while Trump thwarted federal efforts to retrieve documents.

"According to the indictment, (Trump) 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," Hur wrote in the report.

Hur found evidence that Biden willfully retained classified documents about Afghanistan and notebooks containing Biden’s handwritten notes about security and foreign policy. The report detailed some of Biden’s haphazard storage practices, saying some of the Afghanistan documents were "found in Mr. Biden's Delaware home: in a badly damaged box in the garage, near a collapsed dog crate, a dog bed, a Zappos box, an empty bucket, a broken lamp wrapped with duct tape, potting soil, and synthetic firewood."

After an investigation that included more than 100 witnesses, Hur’s team wrote that, despite the investigators’ concerns about how Biden had handled certain materials, a jury would be unlikely to find Biden guilty beyond a reasonable doubt. 

In a statement after the report’s release, Biden said he was pleased that the investigation, which he described as "exhaustive," yielded no charges.

"I cooperated completely, threw up no roadblocks, and sought no delays," Biden said, adding that he agreed to five hours of interviews on Oct. 8 and 9 despite dealing with an international crisis after Hamas attacked Israel on Oct. 7.  

Although the lack of prosecution is a victory for Biden, the picture Hur paints "is not a pretty one," said Joan Meyer, a partner at law firm Thompson Hine LLP. "It is clear that Biden, as vice president and as a senator, employed sloppy procedures to handle classified materials, including leaving them on tables and in unlocked drawers. His staff was similarly negligent."

According to the report, Biden retained materials that included marked classified documents about military and foreign policy in Afghanistan and notebooks containing Biden's handwritten entries about national security and foreign policy issues that included sensitive intelligence sources and methods.

These included a classified, handwritten memo he sent President Barack Obama over Thanksgiving in 2009. FBI agents recovered the materials from Biden's garage and home office in Wilmington, Delaware. The documents have classification markings up to the Top Secret/Sensitive Compartmented Information level, the report said. 

The report also offered evidence that Biden knew he possessed classified documents.

"In a recorded conversation with his ghostwriter in February 2017, about a month after he left office, Mr. Biden said, while referring to his 2009 Thanksgiving memo, that he had ‘just found all the classified stuff downstairs,’" the report stated.

Biden also handwrote notes related to classified subjects, including the President's Daily Brief and National Security Council meetings, and kept them in unsecured and unauthorized places at his Virginia and Delaware homes, the report said. Biden used some of the notebooks for materials for a 2017 memoir, "Promise Me, Dad." Investigators found that Biden shared some classified information with his ghostwriter as the book was written, though no classified material appeared in the book. FBI agents recovered the notebooks from the office and basement den. 

After learning of the investigation, the ghostwriter, Mark Zwonitzer, deleted audio recordings of his conversations with Biden. However, Zwonitzer turned over his laptop computer and external hard drive and consented to a search. FBI technicians were able to recover deleted recordings. Zwonitzer also kept some near verbatim transcripts.

Biden "sometimes skipped over notebook passages to avoid reading classified information," Hur wrote, and if Zwonitzer was called to testify, Zwonitzer would state that Biden said he needed to be careful "because he was worried that there was a possibility that ... some of this stuff (handwritten entries in the notebooks) could be classified." 

The report described Biden as "emphatic" about his right to his notebooks, declaring that the materials were his "property" and that he told them "every president before me has done the exact same thing," referring to keeping handwritten classified materials after leaving office. 

Biden cited the example of Ronald Reagan, who kept diaries of his presidency containing classified information, and he was not charged. 

Hur considered that precedent in deciding not to charge Biden. Changing the standard "would be seen by many to violate basic principles of notice and fairness," the report said.

This image, contained in the report from special counsel Robert Hur, shows boxes in a storage closet at the Penn Biden Center in Washington, in March 2021. (Justice Department via AP)

Hur considered several factors when weighing whether to charge Biden, including the volume of classified information, the sensitivity of the information, Biden’s motivations and his actions surrounding the documents. 

Although the volume of classified information "is not small" and "could support a decision to bring criminal charges, it does not require such charges," Hur wrote.

The Afghanistan documents concerned "a conflict that is now over," he wrote, and although the notebook entries contained "some highly sensitive information" dating as late as 2017, the Reagan precedent moved him away from prosecution.

However, Hur noted that some of the findings didn’t favor Biden. If Biden retained documents intentionally, Hur wrote, "he appears to have done so to defend his record and burnish his credentials to run for president. This factor counts against him. It is difficult to conceive of good reasons to risk the nation's security by mishandling classified information, and bolstering one's reputation is not one."

The special counsel repeatedly highlighted what the team considered Biden’s "limited" and "poor" memory, saying that at various points in his interview sessions, Biden didn’t remember when he was vice president and forgot when his term ended and when his term began. "He did not remember, even within several years, when his son Beau died," the report added. 

It also said Biden’s memory appeared hazy when describing the debate to send troops to Afghanistan, mistakenly saying he "had a real difference" of opinion with Lt. Gen. Karl Eikenberry, although Eikenberry was an ally whom Biden had cited approvingly.

The White House aggressively rebutted the portrayal of Biden as someone with failing faculties. On Feb. 5, after the report was sent to the White House for review, the White House wrote a letter saying the report’s discussion of Biden’s memory was neither "accurate or appropriate."

"The report uses highly prejudicial language to describe a commonplace occurrence among witnesses: a lack of recall of years-old events," said the letter, which was appended to the special counsel’s report. "Such comments have no place in a Department of Justice report, particularly one that in the first paragraph announces that no criminal charges are ‘warranted'’ and that ‘the evidence does not establish Mr. Biden's guilt.’"

Trump and Biden both had documents with classification markings stored in unauthorized locations while they were private citizens. 

However, legal experts see important differences, too, based on how the two presidents interacted with federal officials who were investigating classified document handling. Hur’s report makes a point of contrasting the significant differences between the two cases.

"After being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite," the 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."

Biden, by contrast, "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."

Meyer of Thompson Hine said "Biden’s mishandling of classified materials is not comparable to Trump. "Trump’s case is replete with deliberate, willful behavior." Meyer added that "Trump had very recent classified information, kept in the open, that could have been stolen or given to any number of hostile countries to the detriment of the United States."

After the report was released, Trump seized on the report’s criticism of Biden, saying in an emailed statement that Biden’s case was "100 times" severer than his and that what Biden did was "outrageously criminal." Trump also repeated, inaccurately, that Trump was covered by the Presidential Records Act.

In a statement on Truth Social, Trump wrote, "I was cooperative with the investigators. He wrote that Biden didn’t cooperate and "willfully retained" the documents.

This retelling of the story clashes with what both special counsels have found. Trump was charged in 2023 with 31 counts of willful retention of national defense information.

Someone who willfully retains a covered document and "fails to deliver it to the officer or employee of the United States entitled to receive it" can be fined or imprisoned if found guilty. 

Beyond the charges of "willful retention," Trump was charged with a conspiracy to obstruct justice by hiding and concealing documents, withholding a document from a grand jury, corruptly concealing a document or record from a grand jury; and concealing a document in a federal investigation.

CLARIFICATION, Feb. 13: We updated the story to be more precise about the Hur report's wording about willful retention.

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