No charge for Biden over classified documents but report questions memory

Connie Queline

No charge for Biden over classified documents but report questions memory

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US President Joe Biden “wilfully retained and disclosed classified materials”, a special counsel has found, but he will not be charged.

The report says Mr Biden shared some of the sensitive material with a ghostwriter for his memoir.

But the special counsel concludes it would be difficult to convict the president as he comes across as an “elderly man with a poor memory”.

The files were found at Mr Biden’s home and former private office from 2022-23.

The special counsel’s report revealed for the first time that the documents were classified as Top Secret – the highest level of classification, and were about military and foreign policy in Afghanistan.

The files included notebooks containing Mr Biden’s entries about national security and foreign policy matters “implicating sensitive intelligence sources and methods”.

But the report by justice department Special Counsel Robert Hur says: “We conclude that the evidence does not establish Mr Biden’s guilt beyond a reasonable doubt.

“Prosecution of Mr Biden is also unwarranted based on our consideration of the aggravating and mitigating factors.”

Biden’s memory had ‘significant limitations’

The 345-page report was released publicly on Thursday after the White House said it would not request any redactions.

Investigators conducted 173 interviews with 147 witnesses, including President Biden himself.

The special counsel’s report says that it would be difficult to convict the president of improper handling of files because “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”.

“It would be difficult to convince a jury that they should convict him – by then a former president well into his 80s of a serious felony that requires a mental state of willfulness.”

Mr Hur’s report said Mr Biden’s memory seemed to have “significant limitations”. He could not recall when he was vice-president (from 2009-2017), or “even within several years, when his son Beau died” (2015), according to the findings.

“And his memory appeared hazy when describing the Afghanistan debate that was once so important to him.”

Mr Biden, 81, welcomed the decision not to charge him in remarks at a Democratic retreat in Leesburg, Virginia, saying: “This matter is now closed.”

He said he had co-operated with investigators, and accused Donald Trump of obstructing the inquiry into his own alleged mishandling of secret records. The former US president faces a criminal trial this year.

In a statement earlier by the White House Mr Biden said he had sat for a total of five hours of interviews on 8-9 October “even though Israel had just been attacked on October 7th and I was in the middle of handling an international crisis”.

Getty Images

White House slams ‘highly prejudicial language’

The report comes with an attached letter from Mr Biden’s legal team, criticising the special counsel.

“We do not believe that the report’s treatment of President Biden’s memory is accurate or appropriate,” wrote White House lawyer Richard Sauber.

“The report uses highly prejudicial language to describe a commonplace occurrence among witnesses: a lack of recall of years-old events.”

The president’s Republican critics seized on the report.

A joint statement released by Republican House leadership called the comments about Mr Biden’s memory lapses “the most disturbing parts”.

“A man too incapable of being held accountable for mishandling classified information is certainly unfit for the Oval Office,” the Republicans wrote.

The presidential campaign of Donald Trump released a statement saying: “If you’re too senile to stand trial, then you’re too senile to be president. Joe Biden is unfit to lead this nation.”

the cluttered garage where the docs were found


The report says that Mr Biden’s actions “present[ed] serious risks to national security, given the vulnerability of extraordinarily sensitive information to loss or compromise to America’s adversaries”.

“But addressing those risks when pursuing criminal charges, the only means available to this office, is not the proper remedy here.”

Ghostwriter deleted Biden recordings

The report also says that Mr Biden divulged classified material from his hand-written notebooks to the ghostwriter for his 2018 memoir Promise Me, Dad.

The ghostwriter, Mark Zwonitzer, deleted audio recordings of discussions with Mr Biden after learning of the special counsel’s probe, the report says.

Prosecutors considered filing charges against the ghostwriter, but ultimately declined to do so after determining that his deleting of the tape was “his standard practice with his clients”.

Mark Zwonitzer seen speaking at an entertainment panel in 2018

Getty Images

Biden kept Afghan files to show Obama’s ‘mistaken decision’

The Hur report says Mr Biden had “a strong motive” to retain some of the classified files because he wanted to prove that President Barack Obama, whom he served under as vice-president, was wrong about Afghanistan.

He hoped to demonstrate that Mr Obama’s 2009 troop deployment to fight the Taliban “was a mistake on par with Vietnam”.

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Mr Hur, a Trump nominee, was appointed by US Attorney General Merrick Garland in early 2023 to lead the investigation.

The inquiry began after a separate inquiry had been launched into secret documents found at Mr Trump’s Florida home.

In June, Mr Trump was charged with seven counts of mishandling classified documents at Mar-a-Lago in Palm Beach.

  • How Trump, Biden and Clinton cases compare

He has denied any wrongdoing and repeatedly argued it was his right to retain the records. His trial is set to begin in Miami in May.

In Mr Biden’s case, documents were first discovered by his aides in an office he used after departing the vice-presidency in 2017 and before he launched his 2020 bid for the White House.

Mr Biden's notebooks were also recovered from his Delaware home office


The first batch of classified documents were discovered in November 2022 at a think tank he founded in Washington DC.

A second cache was found in December 2022 next to a dog bed in the garage of his Wilmington, Delaware, home. Another document was found in a storage space at the house in January 2023, his lawyers said at the time.

After uncovering the files, the president said his team turned them over to the National Archives and the Department of Justice.


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