A special counsel report made public Thursday found evidence that President Biden willfully retained and shared highly classified information when he was a private citizen, including documents 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 in November.
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.
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.
Biden’s lawyers blasted the report for what they said were 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.”
Hur, a former U.S. Attorney in the Trump administration, was appointed by Attorney General Merrick Garland as special counsel in January 2023 following an initial discovery by Biden staff of classified records in Washington office space and subsequent property searches by the FBI — all coordinated voluntarily by Biden staff — that turned up additional sensitive documents from his time as vice president and senator.
The investigation into Biden is separate from special counsel Jack Smith’s inquiry into the handling of classified documents by Trump after Trump left the White House. Smith’s team has charged Trump with illegally retaining top secret records at his Mar-a-Lago home and then obstructing government efforts to get them back. Trump has said he did nothing wrong.
Hur’s report said many of the documents recovered at the Penn Biden Center in Washington, in parts of Biden’s Delaware home and in his Senate papers at the University of Delaware were retained by “mistake.”
Investigators did find evidence of willful retention and disclosure of a subset of records that were found in a garage in Biden’s Delaware house and date to his vice presidency. The files pertain to a troop surge in Afghanistan during the Obama administration that Biden had vigorously opposed. He kept records at home that documented his position, including a classified letter to Obama in 2009.
The documents have classification markings up to the Top Secret/Sensitive Compartmented Information Level and were found in a box in Biden’s Delaware garage “that contained other materials of great significance to him and that he appears to have personally used and accessed.”
Classified documents from the Obama administration were also found in Biden’s basement den, and records from his time in the Senate in the 1970s and 1980s were also found in his garage, the report says.
Some of the classified information was shared with a ghostwriter with whom he published memoirs in 2007 and 2017. As part of the probe, investigators reviewed a recording of a February 2017 conversation between Biden and his ghostwriter in which Biden can be heard saying that he had “just found all the classified stuff downstairs.”
The report said there was some evidence to suggest that Biden knew he could not keep classified handwritten notes at home after leaving office.
While the report removes legal jeopardy for the president, it is nonetheless is an embarrassment for Biden, who placed competency and experience at the core of his rationale to voters to send him to the Oval Office.
The report also called out Biden’s “limited memory” both during his 2017 recorded conversations with the ghostwriter and in an interview with investigators last year in which, prosecutors say, he could not immediately remember the years in which he served as vice president.
“Given Mr. Biden’s limited precision and recall during his interviews with his ghostwriter and with our office, jurors may hesitate to place too much evidentiary weight on a single eight-word utterance to his ghostwriter about finding classified documents in Virginia, in the absence of other, more direct evidence,” the report says
“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,” investigators wrote.
