Special counsel Robert Hur said he will not recommend charges against President Joe Biden for his handling of classified documents while out of office, despite finding evidence that Biden "willfully retained" materials.
"We conclude that no criminal charges are warranted in this matter," said Hur's report summarizing his yearlong probe. "We would conclude the same even if there was no policy against charging a sitting president. Our investigation uncovered evidence that President Biden willfully retained and disclosed classified information after his vice presidency when he was a private citizen."
"These materials included (1) marked classified documents about military and foreign policy in Afghanistan, and (2) notebooks containing Mr. Biden's handwritten entries about issues of national security and foreign policy implicating sensitive intelligence sources and methods. FBI agents recovered these materials from the garage, offices, and basement den in Mr. Biden's Wilmington, Delaware home," the report said.
"However, for the reasons summarized below, 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 set forth in the Department of Justice's Principles of Federal Prosecution. For these reasons, we decline prosecution of Mr. Biden," the report said.
"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," the 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."
Attorneys for pushed back on the special counsel's characterization of Biden's memory and recollections during his two-day interview with investigators in October.
"We do not believe that the report's treatment of President Biden's memory is accurate or appropriate," wrote Richard Sauber, special counsel to the president, and Bob Bauer, a personal attorney for the president. "In fact, there is ample evidence from your interview that the President did well in answering your questions about years-old events over the course of five hours."
Garage box and storage closet of President Joe Biden's garage taken on Dec. 21, 2022, in a photo released by the Department of Justice.
Department of Justice.
The attorneys noted that the interviews took place in the midst of the Oct. 7 attack on Israel, when Biden was busy "conducting calls with heads of state, Cabinet members, members of Congress, and meeting repeatedly with his national security team."
"It is hardly fair to concede that the President would be asked about events years in the past, press him to give his ''best" recollections, and then fault him for his limited memory," they wrote.
According to Hur's report, among the classified documents Biden retained were materials documenting his opposition to the troop surge in Afghanistan, including a classified handwritten memo he sent President Obama over the 2009 Thanksgiving holiday, which FBI agents recovered from Biden's Delaware home and its garage.
Asked in his interview with investigators about handwriting on a folder containing marked classified documents about Afghanistan, the report said Biden "identified the handwriting as his, but said he recalled nothing about how the folder or its contents got into his garage."
The report lays out that Biden, in writing his 2007 and 2017 memoirs, worked with a ghostwriter, and in a recorded conversation with the ghostwriter a month after he left office, referenced the 2009 memo -- saying that he had "just found all the classified stuff downstairs."
At that time, Biden was renting a home in Virginia, the report says, and met the ghostwriter there to work on second memoir. He moved out of the Virginia home in 2019 and consolidated his belongings in Delaware, where the report says FBI agents later found the documents marked classified about the Afghanistan troop surge in his garage.
As such, the report says "evidence supports the inference," that when Mr. Biden said the comment in 2017, he "was referring to the same marked classified documents about Afghanistan that FBI agents found in 2022 in his Delaware garage."
Hur's long-anticipated report was released Thursday, hours after the White House reviewed the document and announced that "in keeping with his commitment to cooperation and transparency," the president would not assert executive privilege over any portion of the report.
Ian Sams, a spokesperson for the White House counsel's office, said in a statement that the president's legal team had completed a review of the report and that "in keeping with his commitment to cooperation and transparency," the president would not assert executive privilege over any portion of the report.
Attorney General Merrick Garland earlier this week informed key lawmakers that Hur had concluded his investigation, which examined how approximately two dozen classified documents wound up at Biden's personal home and office.
The records in question date back to Biden's time as vice president, and at least some include "top secret" markings, the highest level of classification.
Interior of President Joe Biden's garage storage closet containing Senate documents, Jan. 20, 2023, in a picture released by the Department of Justice.
Department of Justice
Garland appointed Hur as special counsel in January of 2023, after aides to the president discovered a batch of ten documents at the Penn-Biden Center in Washington, D.C., where Biden kept an office after his vice presidency.
A second discovery of additional records in the garage of Biden's Wilmington, Delaware, home precipitated Garland's decision to assign Hur as special counsel, ABC News reported at the time.
The report stated that "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."
Investigators interviewed as many as 100 current and former officials, including Secretary of State Antony Blinken, former White House Chief of Staff Ron Klain, and Hunter Biden, the president's son. In October, Hur's team spent two days interviewing Biden himself.
ABC News previously reported that sources who were present for some of the interviews, including witnesses, said that authorities had apparently uncovered instances of carelessness from Biden's vice presidency, but that -- based on what was said in the interviews -- the improper removal of classified documents from Biden's office when he left the White House in 2017 seemed to be more likely a mistake than a criminal act.
The White House had emphasized from the beginning that it would cooperate with investigators. Biden himself repeatedly denied any personal wrongdoing and said he was "surprised" to learn of the documents' existence.
President Joe Biden's garage, Dec. 21, 2022, in a photo released by the Department of Justice.
Department of Justice
The Hur investigation has played out quietly against the backdrop of special counsel Jack Smith's inquiry into former President Donald Trump's handling of classified records, which culminated last year in a 40-count indictment, to which Trump has pleaded not guilty.
Trump has sought to link his circumstances to Biden's by trying to draw an equivalence between their conduct and calling his prosecution the result of a justice system improperly targeting Republicans.
But records subsequently released by the National Archives indicate that Biden's legal team cooperated with National Archives officials, whereas federal prosecutors have accused Trump of deliberately withholding records he knew to be classified from investigators with the National Archives and, later, the FBI.
Hur's report drew that distinction, saying, "Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. 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," the report said, "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."
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