Five lessons from the Biden investigation report on classified documents
Attorney General Merrick B. Garland on Thursday released the report of Robert K. Hur, the special counsel Mr. Garland appointed to investigate how classified documents ended up in an office previously used by President Biden and his Delaware home . Here are some takeaways.
The evidence was insufficient to bring criminal charges.
Mr Hur was bound by Justice Department policy under which the Constitution implicitly gives sitting presidents temporary immunity from prosecution, so he could not have charged Mr Biden even if he had wanted to. But Mr. Hur wrote that Mr. Biden should not be charged in anyway.
“We conclude that no criminal charges are warranted in this case,” he wrote. “We would reach the same conclusion even if Justice Department policy did not preclude criminal charges against a sitting president.”
Mr. Hur wrote that he had found evidence that Mr. Biden had deliberately withheld and disclosed sensitive information after he left the vice presidency in 2017. But he said the evidence fell short of what would be necessary to “establish Mr. Biden's guilt beyond a reasonable doubt.”
Hur said Biden has “significant” memory problems.
Mr. Hur cited several reasons why a jury might reasonably doubt that Mr. Biden had “intentionally” withheld classified documents after leaving the Obama White House, including that Mr. Biden had reported the problem and had investigators invited to search his house. But Mr. Hur cited another reason with potentially explosive political implications for the 81-year-old president as he seeks re-election: that he has memory problems.
Mr. Hur wrote that Mr. Biden's memory “appeared to be significantly impaired.” The special counsel portrayed Mr. Biden's recorded conversations with his ghostwriter in 2017 as “often painfully slow, with Mr. Biden struggling to recall events.” And, the report said, his memories “were worse” during his interview with Mr. Hur in October, when Mr. Biden came across, he said, “as a likable, well-meaning, older man with a bad memory.”
In particular, the report quoted Mr Biden as saying on the first day of the interview: “If it was 2013 – when did I quit as vice president?” On the second day, the report said, Mr. Biden appeared to forget when his term began and ended, asking, “Am I still vice president in 2009?”
It said Mr. Biden “could not remember, even within a few years, when his son Beau died” and falsely said that in the debate over sending more troops to Afghanistan he differed from a general who actually had been an ally. dispute.
In a letter accompanying the report, a White House lawyer and a personal attorney for Mr. Biden, Richard Sauber and Bob Bauer, disputed Mr. Hur's characterizations. They noted that the five-hour interview had taken place in the immediate aftermath of the October 7 terrorist attacks on Israel, after Mr Biden had spoken for hours with foreign heads of state. The attorneys called the prosecutor's observations inaccurate and unnecessary for a report that found insufficient evidence to file charges.
“The President's inability to recall dates or details of events that occurred years ago is neither surprising nor unusual, especially given that many questions asked him to recall the details of staff work to source materials and furnishings pack, ship and store during moves between homes,” they wrote. They noted that other witnesses had also shown 'predictable memory loss', without this being reflected in the same way in the report.
Biden's documents case is different from Trump's.
Mr. Hur's report drew a sharp distinction between the investigation into Mr. Biden and the prosecution of former President Donald J. Trump on charges of mishandling classified material after leaving office and obstructing the government efforts to retrieve it.
“Several material differences” between the two cases were apparent, and the allegations against Mr. Trump, if proven, “present serious aggravating facts” in contrast to the evidence involving Mr. Biden, Mr. Hur wrote. In particular, he said, the two men had reacted very differently to the situations.
“Notably, after being given multiple opportunities to return classified documents and avoid prosecution, Mr. Trump reportedly did the opposite,” Mr. Hur’s report said. “According to the indictment, he not only refused to return the documents for months, but also obstructed justice by enlisting others to destroy evidence and then lie about it.”
He added: “In contrast, Mr. Biden has submitted classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations, including his homes, participated in a voluntary interview, and otherwise cooperated with the investigation. ”
Outside of office, Biden referred to finding “classified items” in his home.
The investigation focused in part on some government documents about the war in Afghanistan that were marked as classified, which investigators found in a torn cardboard box with a jumble of other items in Mr. Biden's garage in Delaware.
But Mr Hur found no evidence showing Mr Biden knew they were there. He wrote that the “strongest argument for criminal charges against Mr. Biden” regarding those documents would instead be to charge him with knowingly possessing them without permission earlier, at a home he rented in Virginia after he had left the vice presidency.
Mr. Hur obtained an audio recording from Mr. Biden on Feb. 16, 2017 — nearly a month after the end of the Obama administration — in which he told Mark Zwonitzer, the ghostwriter with whom he was working on a memoir, that he had “just secret stuff downstairs.”
The context of his comment was a discussion about how Mr. Biden had sent President Barack Obama a handwritten memo opposing Mr. Obama's decision to send a wave of troops to Afghanistan in 2009, although the book did not elaborate on that .
But Mr. Hur said the available evidence was “insufficient to bear the government's burden of pursuing a criminal prosecution.” Among other things, there was no evidence that the Afghan papers found in Mr. Biden's garage in Delaware had been in his Virginia home, nor that Mr. Biden had specifically referred to those papers in the audio recording.
“We do not know why, how or by whom the documents were placed in the box,” Mr Hur wrote.
Hur sharply criticized Biden for secret diary entries.
A particular dispute arose over personal diary entries Mr Biden had made in handwritten notebooks. These items included a mix of both personal matters — including “heartbreaking passages about his son's death,” the report said — and notes about Situation Room meetings involving national security and foreign policy, “involving sensitive intelligence sources and – methods were involved.”
On several occasions, Mr. Biden read Mr. Zwonitzer handwritten notes about National Security Council meetings where intelligence and military information was discussed. On one occasion he described a meeting – but not his notes – as secret, and on another occasion he showed the ghostwriter a word he could not read, but warned that “some of this could be secret, so be careful. ”
Mr. Hur wrote that this was evidence that Mr. Biden disclosed classified information to Mr. Zwonitzer and “cannot be justified,” but also that the “evidence cannot prove that Mr. Biden did so intentionally — i.e. he knew that these passages in the notebook were secret and that he intended to share classified information with Zwonitzer.”
Mr. Hur also characterized Mr. Biden's “decision to keep his notebooks at home in unlocked and unauthorized containers” as “completely irresponsible,” using the same phrase — as Mr. Hur noted — that Mr. Biden had used to expose Mr Trump. for keeping classified government documents at his Mar-a-Lago club and residence in Florida.
Mr. Hur also said that prosecutors would likely not be able to prove at any trial that Mr. Biden knew his handling of the notebooks had broken any law because he considered them personal property that he could take home after his vice presidency and “Sufficient evidence supports this defense to establish a reasonable doubt.”
Mr. Hur described at length how other presidents since the enactment of the Presidential Records Act in 1978, beginning with Ronald Reagan, have left office with diaries of classified information they kept while president, and how relevant government authorities were aware of this and accepted that practice.