1. Biden had a faulty and unreliable memory, investigators found
The most damning parts of the report — which were immediately viewed as politically seismic by Republicans — focus on Biden’s faulty memory, which has been a central attack on the 81-year old commander in chief in the 2024 presidential campaign and has privately concerned some Democrats.
The report said that Biden “willfully” took classified materials but probably would not be convicted by a jury because they would see him as “a well-meaning, elderly man with a poor memory.” The report says Biden could not remember the years he served as vice president or when his son Beau Biden died and misremembered key details of the Afghanistan conflict that was of central importance to him when he first served in the White House with President Barack Obama.
“He did not remember when he was vice president, forgetting on the first day of the interview when his term ended (‘if it was 2013 — when did I stop being Vice President?’), and forgetting on the second day of the interview when his term began,” the report said. It added: “He did not remember, even within several years, when his son Beau died.”
The report also said Biden told investigators that he had a serious disagreement with one particular general in Afghanistan. In fact, he had written in a memo to Obama that the general had been an ally and agreed with him.
Biden also struggled with memory in recorded conversations he had with a ghostwriter, Mark Zwonitzer. “Mr. Biden’s recorded conversations with Zwonitzer from 2017 are often painfully slow, with Mr. Biden struggling to remember events and straining at times to read and relay his own notebook entries,” the report said.
In a written response to Hur’s report, the White House strongly rejected the description of Biden’s memory, arguing it was not “accurate or appropriate.”
“The report uses highly prejudicial language to describe a commonplace occurrence among witnesses: a lack of recall of years-old events,” Richard Sauber and Bob Bauer, lawyers representing Biden, said. Pointing to the report’s own language, the lawyers added: “If the evidence does not establish guilt, then discussing the jury impact of President Biden’s hypothetical testimony at a trial that will never occur is entirely superfluous.”
2. The documents in Biden’s possession included highly classified material
Investigators recovered notebooks that Biden kept from his time as vice president that contained classified information. The report found that Biden used these notebooks, which included handwritten notes from meetings with Obama and senior administration officials, as well as meetings about foreign adversaries and counterterrorism strategy, to craft his 2017 memoir with his ghostwriter.
The notebooks contained more than three dozen entries that investigators determined contained classified information, almost all of them at the secret and top-secret levels. Some of that information was found to be related to human sources, which are among the most sensitive and highly guarded categories of classified secrets.
One such entry was found in a notebook Biden had apparently labeled “Af/Pak 1,” referring to Afghanistan and Pakistan. Investigators pointed to five pages that contained, among other things, information considered “HCS-O,” a special “compartment” of intelligence handling “used to protect exceptionally fragile and unique” clandestine human source operations “that are not intended for dissemination outside of the originating agency,” according to rules promulgated by the intelligence community.
The special counsel criticized Biden for the way he handled and shared classified information.
“The practices of retaining classified material in unsecured locations and reading classified material to one’s ghostwriter present serious risks to national security, given the vulnerability of extraordinarily sensitive information to loss or compromise to America’s adversaries.” The special counsel further noted that the Justice Department “routinely highlights such risks” when it pursues criminal charges against people for mishandling classified information. “But addressing those risks through criminal charges, the only means available to this office, is not the proper remedy here.”
Biden’s possession of highly-classified documents will draw immediate comparison to Trump’s possession of similar material. But the two men’s stashes differed significantly in size, if not so much in sensitivity. The number of documents involved in the Biden probe appears far smaller — fewer than 20, compared with roughly 300 for Trump.
Perhaps more importantly, federal prosecutors came to suspect that Trump was deliberately misleading them and hiding some highly sensitive papers even after he received a grand jury subpoena demanding their return. Biden has said he cooperated with investigators and handed over the documents as soon as they were discovered.
Biden defended his retention of classified material, comparing his actions to those of other presidents, including Ronald Reagan.
In an interview with the special counsel, Biden “explained that he took his notebooks with him after his vice presidency because ‘[t]hey are mine,’ and explained that ‘every President before me has done the same exact thing.’ He also specifically referenced Reagan, who, after leaving office, kept handwritten diaries containing classified information at his private home …”
In written answers to investigators, Biden wrote that, “[l]ike presidents and vice presidents before me, I understand these notes to be my personal property.” But the report said that he “declined to answer several questions about whether he believed his notes contained classified information; whether he believed he was authorized to possess classified information after his vice presidency; and whether he took steps to avoid writing classified information in his notebooks.”
3. The case against Trump’s handling of classified documents is markedly different
What makes the report different from the Trump allegations is the lack of alleged deceitful conduct. There is no indication Biden resisted requests to return the documents; in Trump’s case, appeals for missing files came from the National Archives and his own lawyers and advisers for more than a year.
Special counsel Jack Smith has charged Trump in connection with the discovery of hundreds of classified documents that were taken to his home in Florida after he left the White House. He has pleaded not guilty.
There is no allegation Biden sought to conceal classified documents from his own lawyer, as the Trump indictment alleges. His house was not raided by the Federal Bureau of Investigation because his team cooperated in searching and turning over documents. There are no allegations he ordered aides to move boxes or that he willfully did not respond to a subpoena.
In totality, the allegations are that Biden mishandled classified documents and had a faulty memory, but he did not seek to obstruct an investigation or block efforts to return the documents.
“Many will conclude that a president who knew he was illegally storing classified documents in his home would not have allowed a search of his home to discover those documents and then answered the government’s questions afterwards,” the report said. “While parts of this argument are debatable, we expect the argument will carry real force for many reasonable jurors. These jurors will conclude that Mr. Biden — a powerful, sophisticated person with access to the best advice in the world — would not have handed the government classified documents from his own home on a silver platter if he had willfully retained those documents for years. Just as a person who destroys evidence and lies often proves his guilt, a person who produces evidence and cooperates will be seen by many to be innocent,” the report said.
The report does say, however, that Mr. Biden’s ghostwriter deleted audio recordings after learning of the special counsel’s appointment. The ghostwriter admitted to doing this — and “turned over his computer and external hard drive and consented to their search” and said they were able to find transcripts of the recordings and recovered most of the audio files. The FBI considered charging the ghostwriter for obstruction of justice, the report says, “but we believe the evidence would be insufficient to obtain a prosecution.”
4. A “badly damaged box” held Biden’s Afghanistan legacy
Several of the entries in Biden’s notebooks related to Afghanistan and Pakistan, areas where Biden exerted significant policy influence when he was vice president. Afghanistan in particular remained one of Biden’s chief foreign policy concerns when he became president, culminating in his decision to withdraw U.S. forces from the country in 2021.
More than a decade earlier, in 2009, Biden had strongly opposed the military’s plans to send more troops to Afghanistan and tried to dissuade Obama from committing forces to what Biden believed to be a historic quagmire, “akin to Vietnam,” the report notes.
Obama ultimately ordered the troop surge, but Biden “always believed history would prove him right,” and he “retained materials documenting his opposition to the troop surge,” including a classified handwritten memo that he sent to Obama over the Thanksgiving 2009 holiday, the report found. FBI agents found the classified Afghanistan materials in Biden’s garage and home office in December 2022 and January 2023.
One of the notebook entries contained notes on a meeting in the White House Situation Room with Obama about Afghanistan and Pakistan. Investigators found that this entry contained classified information related to human sources. Biden also made notes about a meeting of the National Security Council on the two countries, which contained top-secret information not intended to be shared with foreign governments, the investigation found.
There are indications in the report that Biden, who was keeping documents to help write his memoir, may have forgotten he possessed them. This was among the reasons the special counsel determined that prosecution wasn’t warranted.
“We also expect many jurors to be struck by the place where the Afghanistan documents were ultimately 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,” the report found. “A reasonable juror could conclude that this is not where a person intentionally stores what he supposedly considers to be important classified documents, critical to his legacy. Rather, it looks more like a place a person stores classified documents he has forgotten about or is unaware of.”
Aaron Schaffer, Devlin Barrett and Perry Stein contributed to this report.
