Takeaways from special counsel’s report into Biden’s handling of classified documents

By Jeremy Herb, Hannah Rabinowitz, Devan Cole, Zachary Cohen and Holmes Lybrand, CNN

Washington (CNN) — Special counsel Robert Hur’s report released Thursday did not charge President Joe Biden with a crime, but it painted a picture of a forgetful commander in chief who failed to properly protect highly sensitive classified information – a depiction that could hurt Biden politically.

The special counsel report found that Biden willfully retained classified information, including top secret documents, and knew he was in possession of some documents as far back as 2017. He also shared some of that information with the ghostwriter of his 2017 memoir.

The special counsel decided not to charge the president in the case – primarily because he found that nothing proved a willful intent by Biden to illegally hold onto classified information and his cooperation with the investgation.

Yet, in a politically damaging line of reasoning, Hur wrote that one reason Biden wasn’t going to be prosecuted was because he would present to a jury as an elderly man “with a poor memory.” Biden’s lawyers objected to the description – calling it “investigative excess” and accusing Hur of flouting Justice Department rules and norms.

The report is sure to become an issue in the 2024 campaign – where Biden’s likely opponent, Donald Trump, is facing criminal charges for his handling of classified material, even though Hur made clear how different the two cases were.

Here are the takeaways from Thursday’s report:

A painful report for Biden

Hur laid out in detail how Biden mishandled classified materials, writing that FBI agents discovered materials from “the garage, offices, and basement den in Mr. Biden’s Wilmington, Delaware, home.”

The materials included classified documents, including some marked at the highest top secret/sensitive compartmented information level, related to military and foreign policy in Afghanistan, as well as and notebooks “containing Mr. Biden’s handwritten entries about issues of national security and foreign policy implicating sensitive intelligence source and methods.”

The special counsel raised Biden’s age and memory in explaining why he didn’t bring charges.

“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,” Hur wrote.

“Mr. Biden’s memory also appeared to have significant limitations,” Hur wrote in another passage, adding that his conversations with his ghost writer “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.”

While Hur also listed other reasons for not prosecuting Biden, the memory and age-related passages are sure to become campaign fodder for Trump and Republicans, who have already made the president’s age a key part of the campaign.

House GOP Whip Tom Emmer, the No. 3 Republican, called Hur’s findings “alarming.”

“It’s clear @joebiden does not have the cognitive ability to be president,” Emmer said on X.

Hur says evidence didn’t support charging the president

While the investigation revealed that Biden “willfully retained and disclosed classified materials” after leaving office, Hur’s report says his team concluded that the evidence didn’t support prosecuting the president.

According to the report, in 2017 – after leaving office – Biden worked with a ghostwriter for his memoir and told the writer in a recorded conversation that he had “just found all the classified stuff downstairs,” which investigators believe referred to his home he was renting in Virginia.

Investigators believe the evidence suggests Biden was referring to classified documents about the Afghanistan troop surge in 2009 – which FBI agents later found in his garage in Delaware.

Hur’s report says the “best case for charges” would rely on Biden possessing classified documents in 2017, since it was after he had left the vice presidency and before he became president in 2021.

But, the report says, “several defenses are likely to create reasonable doubt as to such charges.”

“For example, Mr. Biden could have found the classified Afghanistan documents at his Virginia home in 2017 and then forgotten about them soon after. This could convince some reasonable jurors that he did not retain them willfully,” the report says.

The report also says that the fact that Biden never talked about the documents again in the “dozens of hours” of recorded conversations with his ghostwriter, paired with how the documents were found in Biden’s garage – in a damaged box surrounded by “household detritus” – could suggest Biden had forgotten about them.

“In addition, Mr. Biden’s memory was significantly limited, both during his recorded interviews with the ghostwriter in 2017, and in his interview with our office in 2023,” the report says, “And his cooperation with our investigation, including by reporting to the government that the Afghanistan documents were in his Delaware garage, will likely convince some jurors that he made an innocent mistake, rather than acting willfully – that is, with intent to break the law – as the statute requires.”

Biden slams Hur’s depiction of him and misspeaks again

The president tore into the special counsel during hastily scheduled remarks at the White House Thursday night, but also created a new headache for himself in the process.

A visibly angry Biden stepped to the microphone in the White House’s Diplomatic Reception Room and ripped into Hur’s depiction of him as an elderly man who was absent-minded in interviews.

Biden tried to shift the narrative, saying, “I am well-meaning. And I’m an elderly man. And I know what the hell I’m doing. I’ve been president – I put this country back on its feet. I don’t need his recommendation.”

And in a moment of obvious emotion, the president targeted Hur for the passage of the report that stated Biden didn’t remember, during an interview with investigators last year, exactly when his eldest son died.

“There’s even reference that I don’t remember to when my son died,” Biden said. “How in the hell dare he raise that?”

“Frankly,” Biden continued, “when I was asked the question, I thought to myself it wasn’t any of their damn business.”

Biden started to say he wore his son Beau’s rosary every day since the day he died, but stopped, appearing to choke up.

“Every Memorial Day we hold a service remember him attended by friends and family and the people who loved him,” Biden said, after a pause. “I don’t need anyone – I don’t need anyone to remind me when he passed away.”

But just minutes after defending his memory and cognition, the president misspoke and called President of Egypt Abdel Fattah al-Sisi the “president of Mexico,” a moment that undercut his forceful pushback against the report.

“I’m of the view, as you know, that the conduct of the response in Gaza, in the Gaza Strip has been over the top. I think that, as you know, initially, the president of Mexico al-Sisi did not want to open up the gate to allow humanitarian material to get in. I talked to him,” he said.

Republicans get political gifts from Hur’s report

Congressional Republicans wasted no time seizing on Hur’s report, claiming that the decision not to bring criminal charges is evidence of political bias against their party’s likely presidential nominee in 2024, as well as that details about Biden’s memory issues prove he is not fit for office.

Republican lawmakers did not expect Hur to prosecute Biden but the finding that his “memory was significantly limited” during interviews with investigators has fueled a cascade of political attacks from Trump’s allies on Capitol Hill.

Shortly after the report was released, GOP members of the House Judiciary committee called Hur’s decision not to prosecute Biden a “double standard,” an apparent reference to the fact that Trump was charged with crimes related to his own handling of classified information by special counsel Jack Smith.

“Despite the fact that Hur acknowledges Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen. DOUBLE STANDARD,” the House Judiciary GOP said on X.

House Oversight Committee Republicans, who have separately investigated Biden’s handling of classified documents, criticized Hur’s report before it was even released or delivered to Congress.

“This is not a transparent Administration, and our investigation will not stop,” Oversight committee Republicans posted on X.

The GOP-led panel also criticized the Department of Justice for not bringing criminal charges.

Differences with Trump’s case

Republicans have long drawn parallels between Hur’s investigation and that of Smith, who last year brought charges against Trump related to his handling of classified documents at Mar-a-Lago after he left the White House, despite critical differences in the two cases.

Hur was careful to note the distinction between the two cases in the report – namely that Biden cooperated with the investigation and returned the documents, while Trump did not give back his documents when asked and then tried to cover it up.

“Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite.” Hur wrote. “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.

“In contrast, Mr. Biden 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,” Hur noted.

Photos show documents stored among household clutter

Hur’s report included a number of photos depicting various parts of Biden’s homes, materials at issue in the investigation and other relevant scenes over the years.

One such photo shows notebooks “seized from (a) file cabinet under (a) television in (Biden’s) Delaware home office.” The report said that Biden “routinely took notes in his notebooks about classified subjects and during meetings where classified information was discussed.”

“For example, he regularly took notes related to the President’s Daily Brief, which typically contains classified information. He also regularly took notes during meetings in the White House Situation Room, and numerous photographs document this practice,” according to the report.

Investigators noted that although “none of the notebooks have classification markings, some of the notebooks contain information that remains classified up to the Top Secret/Sensitive Compartmented Information level.”

Another set of photos showed Biden’s Delaware garage, which “contained a significant volume of boxes, storage, and clutter,” including one that contained classified documents related to Afghanistan policy.

“Among the places Mr. Biden’s lawyers found classified documents in the garage was a damaged, opened box containing numerous hanging folders, file folders, and binders,” the report said. “The box, which was labeled ‘Cabinet’ and ‘Desk file,’ was in a mangled state with ripped corners and two top flaps torn off.”

It continued: “Inside the box, the FBI located two folders containing marked classified documents related to the fall 2009 policy review on Afghanistan.”

The photos harken back to those included by special counsel Smith in his indictment last year of Trump over the former president’s own mishandling of classified documents.

The photos included in Trump’s charging documents showed how he allegedly stored classified documents in various places at his Mar-a-Lago estate, including a ballroom, bathroom shower and his bedroom.

White House criticizes Hur over passages regarding Biden’s memory

The White House counsel and Biden’s personal attorney criticized several of the assertions made in Hur’s report, including comments about the president’s memory.

White House counsel Richard Sauber and Bob Bauer wrote in a five-page letter to Hur on Monday saying that the mention of Biden’s memory was “entirely superfluous.”

“We do not believe that the report’s treatment of President Biden’s memory is accurate or appropriate,” Sauber and Bauer wrote. “The report uses highly prejudicial language to describe a commonplace occurrence among witnesses: a lack of recall of years-old events.”

In a follow-up statement, Bauer accused Hur of “investigative excess” and said he flouted Justice Department regulations and norms.

The attorney said that the special counsel “could not refrain from investigative excess, perhaps unsurprising given the intense pressures of the current political environment.”

“Whatever the impact of those pressures on the final Report, it flouts Department regulations and norms,” Bauer said. “Very little in this opus adds to a clear, succinctly stated understanding of a straightforward conclusion: no misconduct occurred, no charges are warranted. The Report delves into a discussion of the ‘evidence’ of ‘willful’ retention of classified documents, only to acknowledge that there is, in fact, no case of ‘willful’ retention at all.”

A spokesperson for the Special Counsel’s office declined to comment on the alleged “inaccurate and inappropriate” comments in the Special Counsel’s report.

CNN’s Hannah Rabinowitz, Evan Perez, Melanie Zanona and Annie Grayer contributed.

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