Biden, in a written statement, defended himself as someone who has always taken seriously the protection of national security secrets.
“I cooperated completely, threw up no roadblocks, and sought no delays. In fact, I was so determined to give the Special Counsel what they needed that I went forward with five hours of in-person interviews over two days” amid the U.S. government response to an international crisis, Biden said, referring to Hamas’s Oct. 7 attack on Israel. “I just believed that’s what I owed the American people so they could know no charges would be brought and the matter closed.”
Special counsel Robert K. Hur, who interviewed the president at the White House himself, found evidence that Biden “willfully retained and disclosed classified materials after his vice presidency when he was a private citizen,” but concluded that the evidence “does not establish Mr. Biden’s guilt beyond a reasonable doubt.”
Hur’s team said prosecuting Biden would be “unwarranted based on our consideration of the aggravating and mitigating factors” laid out in Justice Department prosecution policies.
To secure a conviction, officials would need to prove to a jury that Biden retained the information willfully. Investigators examined why Biden first told his ghost writer that he had classified information in his possession back in 2017, but didn’t report it to authorities.
Ultimately, the report said a jury would find Biden to be a sympathetic figure and “a well-meaning, elderly man with a poor memory.” Prosecutors also suggested it might not have struck Biden as noteworthy that he was in possession of classified documents so soon after his term as vice president had ended.
Hur’s report said 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.”
Richard Sauber, a lawyer for Biden on the documents case, said he was pleased the investigation has ended without charges, emphasizing in a statement that the president “fully cooperated from day one.” Sauber said every administration ends with packing mistakes involving documents, and Biden’s was no different.
Sauber went on, however, to criticize Hur for “a number of inaccurate and inappropriate comments” in the report. “Nonetheless, the most important decision the Special Counsel made — that no charges are warranted — is firmly based on the facts and evidence,” he said.
The special counsel team conducted 173 interviews with 147 witness, including Biden, and collected millions of documents to compile the report. They said that Biden cooperated with investigators and consented to multiple searches of his properties.
The Justice Department has long had a policy that sitting presidents cannot be accused, charged, or prosecuted for an alleged crime. But officials said in the report that they would have still decided not to pursue charges even if current Justice Department guidance permitted charging a sitting president.
Hur also revealed in his report that he considered filing criminal charges against Biden’s ghostwriter after learning that he had deleted audio recordings of his talks with Biden during the writing of the memoir.
“The recordings had significant evidentiary value,” the report said. The ghostwriter later told the FBI what he’d done, turned over his computer and hard drive, and consented to their search, during which FBI agents were able to recover all the deleted files, though some portions were missing. Separately, the ghostwriter kept his near-verbatim transcripts of the conversations and turned them over to investigators. Ultimately, prosecutors decided the evidence of obstruction would not likely lead to a conviction.
The detailed report also contained photos of notes Biden took during his time as vice president, showing that he organized his notecards into binders so that he could take them with him after he left office. One binder, for example, had notes on classified meetings and information that Biden took during his daily briefings and lunches with President Barack Obama.
The findings suggest his aides knew his notetaking methods could be a problem and discussed how he should properly store the materials. The special counsel investigation did not determine what Biden’s staffers advised him to do with the materials.
Attorney General Merrick General appointed Hur as special counsel in January 2023 after Biden’s aides said they discovered the materials when they searched his home and office.
At the time, a separate investigation was underway into former president Donald Trump’s alleged mishandling of classified documents — a probe that led to 40 federal criminal counts against Trump, including willful retention of national defense secrets and obstruction of justice.
Hur’s report does not shy away from the fact that Trump is being prosecuted for his documents while Biden is not; the special counsel argues that the different facts of the two cases lead to different charging decisions.
“With one exception, there is no record of the Department of Justice prosecuting a former president or vice president for mishandling classified documents from his own administration. The exception is former President Trump,” the report said.
“Unlike the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating factors,” the report continues. Most notable among those: “after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite.”
Garland has said the special counsel appointments were necessary because both Trump and Biden had indicated that they would be running for president in 2024.
Hur’s report portrayed Biden as well-intentioned, but sometimes hapless and forgetful, a man who had access to classified materials throughout his decades-long government career. Biden saved notebooks from his time as vice president that contained classified information, according to the report, and used those notebooks to craft his 2017 memoir with a ghostwriter. The special counsel noted the published books ultimately did not contain classified information.
Prosecutors said that in their interview with the president, Biden sometimes struggled to recall basic facts about his career and his life.
“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 (‘in 2009, am I still Vice President?’),” the report recounted.
The report recounts that Biden did not remember “even within several years” when his son Beau died. And it says that his memory appeared “hazy” in recounting even the debate over Afghanistan that “was once so important to him.”
The report also offers the kind of detail that would add to the portrait of an aging, absent-minded president. Jurors, Hur wrote, could 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.”
Prosecutors concluded that Biden saved some of the classified material because he believed he was an important figure in U.S. history and wanted that history to reflect that he opposed sending more troops to Afghanistan in 2009. Biden, the report said, “always believed history would prove him right.”
Some of the classified documents were classified “top secret/sensitive compartmented information,” a category reserved for particularly sensitive material. They included papers that related to Afghanistan, including a 2009 memo he sent to then-President Obama in “a last ditch effort to persuade him not to send additional troops to Afghanistan,” the report said.
The report noted that in a recorded conversation with his ghostwriter in early 2017, shortly after his term as vice president ended, Biden said he had “just found all the classified stuff downstairs.” At the time, Biden was living in a rented home in Virginia.
This is a developing story. It will be updated. John Wagner contributed to this report.
