Special counsel says Biden will not be charged over classified documents

Connie Queline

Special counsel says Biden will not be charged over classified documents

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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 secrecy, and were about military and foreign policy in Afghanistan.

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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.

In a statement from the White House, Mr Biden, 81, said: “I was pleased to see they reached the conclusion I believed all along they would reach – that there would be no charges brought in this case and the matter is now closed.”

He said that 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”.

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).

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

White House slams ‘highly prejudicial language’

The report comes with an attached letter from Mr Biden’s legal team, asking that the special counsel “revisit your descriptions of President Biden’s memory and revise them so that they are stated in a manner that is within the bounds of your expertise and remit”.

“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.”

For the oldest president in American history, being characterised as an “elderly man with a poor memory” will be seen as politically unhelpful as he seeks another four years in office.

His Republican critics picked up on this line in the report.

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

“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, who faces trial this year on charges over alleged mishandling of secret files, 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 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.

“He consulted the notebooks liberally during hours of discussions with his ghostwriter and viewed them as highly private and valued possessions with which he was unwilling to part,” the special counsel found.

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 decision to delete the recordings was not aimed at concealing those materials from investigators,” and was rather his standard practice with his clients.

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”.

“He wanted record to show that he was right about Afghanistan; that his critics were wrong; and that he had opposed President Obama’s mistaken decision forcefully when it was made – that his judgment was sound when it mattered most.”

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Mr Hur 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 and obstructing an investigation into the storage of the material at Mar-a-Lago in Palm Beach.

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 was found on 2 November 2022 at the Penn Biden Center, a think tank he founded in Washington DC.

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

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

Under the Presidential Records Act, White House records once an administration ends are supposed to go to the National Archives, where they can be stored securely.

Other high-ranking US officials, such as former Vice-President Mike Pence and former Secretary of State Hillary Clinton, have also been accused of mishandling sensitive material.


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