Special counsel says Joe Biden ‘wilfully’ held on to classified material

President Joe Biden “wilfully” held on to classified materials that were discovered at his home in Delaware and the office of a think tank in Washington DC, but should not face criminal charges for doing so, a special prosecutor appointed by the attorney general found in a report released on Thursday.

The special counsel, former Trump appointee and ex-Maryland US Attorney Robert Hur, did not recommend that Mr Biden face criminal charges, citing what he described as significant “mitigating factors” which led him to state that charges were not warranted and would not have been warranted even if Mr Biden were not president and barred from being prosecuted by Department of Justice policy.

The Republican prosecutor also noted that Mr Biden’s memory about the documents was “significantly limited” during his interviews with investigators, and he justified his decision by stating that there was not enough evidence to convince a jury that Mr Biden had wilfully retained the materials beyond a reasonable doubt, in part because the president had cooperated extensively with the probe.

“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,” he said.

But even as he declined to prosecute the president and reported that there was not enough evidence to justify charges or convince a jury of his guilt, the Republican prosector took a rhetorical swipes at the 81-year-old president, describing him in one passage of the report as someone who would appear to jurors as a “well-meaning, elderly man with a poor memory”.

In a statement, Mr Biden said he was “pleased” that Mr Hur decided that there would be no charges against him and said that was the outcome he’d been expecting “all along”.

“This was an exhaustive investigation going back more than 40 years, even into the 1970s when I was a young Senator. I cooperated completely, threw up no roadblocks, and sought no delays,” said Mr Biden, who also noted that he’d been “so determined” to assist Mr Hur’s probe that he’d sat for in-person interviews in the days following the 7 October 2023 terrorist attack in Israel.

“Over my career in public service, I have always worked to protect America’s security. I take these issues seriously and no one has ever questioned that,” he added.

Richard Sauber, a White House attorney who serves as Special Counsel to Mr Biden, praised Mr Hur for noting that the president had “fully cooperated from day one,” with his legal team self-reporting the discovery of classified documents to ensure they were returned to their proper place in the National Archives.

“Not only was there no obstruction, the President’s cooperation throughout this 15-month investigation has been extraordinary,” he said. “The simple truth is President Biden takes classified information seriously and strives to protect it. He has spent decades at the highest levels of government defending and advancing America’s national security and foreign policy interests and protecting her secrets”.

Mr Hur said the materials retained by Mr Biden after his term as vice president ended in 2017 included “marked classified documents about military and foreign policy in Afghanistan, and notebooks containing Mr Biden’s handwritten entries about issues of national security and foreign policy implicating sensitive intelligence sources and methods” that were recovered from “the garage, offices, and basement den” at Mr Biden’s home in Wilmington, Delaware.

The special counsel, who was appointed by Attorney General Merrick Garland last year, said much of the material now deemed to have been classified included handwritten notebooks kept by Mr Biden during his time as vice president, which had been kept in “unsecure spaces” in his home and used during the writing of his 2017 memoir, Promise Me, Dad.

Mr Hur also said Mr Biden had allowed the ghostwriter who assisted him on the book to view the notebooks, which as a matter of law constituted sharing classified information with an authorised person. Mr Hur further reported that documents dating back to the Obama administration were also shared with Mr Biden’s ghostwriter.

But he also noted that Mr Biden’s memoir did not contain any information deemed to have been classified.but he concluded that the then-former vice president did not know that the information in the notebooks was classified. and said a jury “could well conclude that Mr. Biden’s actions were unintentional”.

The prosecutor’s report concluded that he did not belief there was sufficient evidence for a jury to convict Mr Biden of any crime, citing his status as a vice president and president, since the holder of both of those offices is authorised to possess classified information at their home.

He said the “best case” for a charge would have been when Mr Biden told his ghostwriter that he’d discovered classified materials in a Virginia rental home in 2017, though Mr Hur also concluded that Mr Biden would likely have been able to raise “reasonable doubt” in the minds of potential jurors as to whether the retention was “wilful” by claiming that he’d forgotten about them after the incident with his ghostwriter.

“For a person who had viewed classified documents nearly every day for eight years as vice president, including regularly in his home, finding classified documents at home less than a month after leaving office could have been an unremarkable and forgettable event,” he said, adding later that in tape-recorded conversations with his ghostwriter reviewed by investigators, the documents in question did not come up.

He also suggested that Mr Biden could argue that the location of the documents when they were discovered last year in a “badly damaged box surrounded by household detritus” indicated that he’d forgotten about them.

Mr Hur’s report also included details about Mr Biden’s presentation during interviews which appeared tailor-made to fit claims by Mr Trump and his allies that the president is not mentally competent.

At one point, he claimed that Mr Biden did not remember what year his late son, Beau Biden, had died from brain cancer, and he described part of an interview in which the president, in his telling, had trouble keeping track of the years during which he served as vice president.

The president’s personal lawyer, Robert Bauer, slammed Mr Hur for the “investigative excesses” in a statement, and suggested that the special counsel was motivated by “intense pressures of the current political environment” to “flout” Justice Department practices by including negative information about Mr Biden even as he was declining to charge him with a crime.

“Throughout this process, a guiding principle has been to protect the integrity and independence of this investigation. Based on the facts and the law, the Special Counsel in this case had no choice but to find that criminal charges were not warranted. He had other choices, which should have been guided by the Department’s rules, policies, and practices, and he made the wrong ones,” he said.

The derogatory information in the report and the recommendation against criminal charges is likely to be fodder for criticism of Mr Biden by Republicans aligned with former president Donald Trump, who is currently facing criminal charges for unlawfully retaining national defence information at his Florida home and obstructing a grand jury probe into how the documents ended up there after the end of his term as president.

In a statement replete with grievances and outright lies about the matter, Mr Trump complained that the decision not to charge Mr Biden was evidence of a “two-tiered system of justice” and falsely accused the prosecutor supervising the criminal case against him, Jack Smith, of “unconstitutional selective prosecution”.

But despite Mr Hur’s inclusion of the material Mr Biden’s attorney derided as gratuitous and derogatory, the former Maryland US Attorney also took pains to distinguish the case against Mr Trump from Mr Biden’s situation, writing that there were “several material distinctions” between the cases that were “clear”.

“Unlike the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts,” he said, adding that the “most notable” of these was the fact that Mr Trump was given “multiple chances to return classified documents and avoid prosecution” but instead “refused to return the documents for many months and “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,” he said.