Special counsel Robert Hur’s conclusion this week that President Joe Biden should not face charges for “willfully” retaining classified documents in his home because a jury would likely consider him “elderly” and spare him from conviction sparked a political firestorm that could burn well into the heat of the campaign season.
Biden’s significant memory lapses during his interview with investigators in October made establishing criminal intent virtually impossible, Hur wrote in a report about the findings from his yearlong investigation. But Biden’s actions “risked serious damage to America’s national security,” Hur said, as Biden stored highly sensitive material related to Afghanistan, Ukraine, the Iran nuclear deal, and other subjects in various unsecured locations for years.
Here are the top takeaways from the report.
FUDGED TIMELINE
After CBS reported on Jan. 9, 2023, that classified documents had been found in Biden’s private office two months earlier, in November 2022, Biden said publicly that he was “surprised” to learn about the documents.
“We are confident that a thorough review will show that these documents were inadvertently misplaced and the president and his lawyers acted promptly upon discovering of this mistake,” Richard Sauber, White House special counsel, said in a statement on Jan. 12, 2023.
But Hur’s report revealed that Biden was caught on tape acknowledging he had classified documents in his home as early as 2017 — years before claiming he’d had no knowledge of possessing classified material. And at that time, Biden did not have the legal protections of the presidency.
“The best case for charges would rely on Mr. Biden’s possession of the Afghanistan documents in his Virginia home in February 2017, when he was a private citizen and when he told his ghostwriter he had just found classified material,” Hur wrote, citing a recording from 2017 that captured Biden announcing to his ghostwriter that he’d “just found all the classified stuff downstairs.”
DESTRUCTION OF EVIDENCE
The ghostwriter who helped Biden pen his 2017 memoir, Promise Me, Dad, destroyed recordings of conversations with Biden after learning that Attorney General Merrick Garland had appointed a special counsel to investigate the matter.
“The recordings had significant evidentiary value,” Hur said.
Prosecutors considered charging the ghostwriter with obstruction of justice but opted not to — a decision likely to draw scrutiny from Republicans, given that two of former President Donald Trump’s aides are facing obstruction charges for their treatment of evidence involving classified material in Trump’s home after the start of a criminal investigation.
Although FBI agents forensically recovered most of the recordings from the ghostwriter’s devices, “portions of a few of the files appear to be missing,” Hur wrote.
The recordings may have contained evidence that Biden retained and shared classified material while he was a private citizen.
Prosecutors decided against criminally charging the ghostwriter in part because the writer shared “near-verbatim” transcripts of the recordings with investigators, including for the portions of the recordings that the FBI could not recover.
However, without having those parts of the recordings themselves, it’s unclear whether investigators could verify whether the transcripts were completely accurate representations of what was said.
Hur noted that Biden had read aloud from notebooks containing “obviously sensitive information discussed during intelligence briefings with President Obama” while talking with his ghostwriter, often skipping over those classified passages during the readings but “at least three times” reading aloud from the classified portions.
DRIP, DRIP, DRIP
Rather than turn over all the classified documents in Biden’s possession immediately upon discovering the first papers in Washington, D.C., Biden’s attorneys took more than two months and conducted several searches on their own before the extent of the issue became clear and a special prosecutor appointment became necessary.
That timeline seemingly contradicts the picture of immediate compliance that Biden’s team has tried to paint for the president to contrast with Trump’s classified documents problems.
Through November and December 2022 and January 2023, Biden’s attorneys, including his personal lawyer Bob Bauer, discovered additional batches of documents at the Washington office and Wilmington home, alerting the National Archives or Justice Department each time, Hur wrote.
After the initial discovery of classified documents at the Penn Biden Center, Garland asked John Lausch, at that time the U.S. attorney for the Northern District of Illinois, to oversee the criminal investigation the DOJ opened on Nov. 9, 2022.
One episode from January 2023 could shed some light on Garland’s decision to appoint a special counsel to take over for Lausch.
Bauer and another one of Biden’s lawyers discovered “a document with classification markings from the Obama administration in a notebook” in the basement of Biden’s Wilmington house on Jan. 11, 2023, the report said.
The next day, Hur said in the report, Bauer contacted Lausch to tell him about the discovery of the notebook. At that point, it was at least the third time Biden’s attorneys had uncovered classified material in one of Biden’s private spaces. The FBI immediately sent agents to the house to recover the latest document.
But Biden’s lawyer told the FBI agents they could not take the notebook.
“Bauer informed Lausch that, at that time, Bauer did not have Mr. Biden’s consent for the FBI to search and seize his notebook that contained the marked classified document,” Hur wrote.
On the same day that Bauer declined to give the FBI access to the notebook — Jan. 12, 2023, at that point, weeks after the beginning of the investigation — Garland appointed Hur as special counsel.
Sauber did not give the notebook to investigators until two days later.
FBI agents did not conduct a full search of the house until more than a week after that, and when they did, they found volumes of classified material throughout the Wilmington residence, including 17 notebooks that “contained Mr. Biden’s handwritten notes on foreign policy and national security matters as vice president.” The contents of some of the handwritten notes were classified.
Later, FBI agents also recovered documents Biden stored at the University of Delaware, locating even more documents with classified markings, in yet another location.
HAMPTONS HIJINKS
While laying out the process by which Biden’s vice presidential office handled sensitive material, Hur noted that Biden’s struggles with keeping tabs on classified documents may have existed for years before the criminal investigation began.
Hur cited an example from 2010 involving a classified briefing book containing “Top Secret, Sensitive Compartmentalized Information” that Biden seemingly misplaced in the Hamptons. That type of classified information is among the most sensitive in government.
“In 2010, the Executive Secretary team raised concerns about the number of classified briefing books that Mr. Biden had not returned, and the fact that, even when they were returned, some of the content was missing,” Hur wrote.
Aides raised concerns at the time that “nearly thirty of the classified briefing books from the first six months of 2010 were outstanding.” In August 2010, Biden failed to return one highly sensitive briefing book “that [Biden] had received during a trip to the Hamptons, in New York.”
“We were unable to determine whether these materials were ever recovered, although they were likely found and disposed of by military aides or naval enlisted aides,” Hur wrote in the report.
After that briefing book disappeared, a member of Biden’s counsel “met with Mr. Biden to discuss the handling of classified material” and to remind him of the proper ways to handle classified papers.
But the picture of a politician who has long failed to follow classified document rules contradicted the claims from Biden allies that he has been a conscientious steward of sensitive material throughout his career. Hur’s characterization also raised questions about how Biden reacted in September 2022 to the investigation into his predecessor.
During an episode of 60 Minutes that month, Biden wondered “how … anyone could be that irresponsible” as to leave classified documents in a storage room of their house, as Trump had recently been accused of doing.
INTENT INQUIRIES AND MEMORY PROBLEMS
Biden’s struggle to recall basic details during his interviews with investigators last year produced the most devastating headlines from the report. A prime-time speech Biden delivered hours after the report was released did little to dispel the concerns raised.
“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,” Hur wrote in the report.
The special counsel cited the president’s “limited precision and recall” during his encounters with the DOJ and in recordings of interviews with his ghostwriter when concluding that prosecutors could likely not build a case that would convince a jury Biden intentionally squirreled away classified documents.
The likelihood that Biden would successfully avoid conviction on criminal charges by presenting himself as a “well-meaning” but “elderly” man in his mid-80s factored into Hur’s decision not to recommend Biden be prosecuted.
But the damage from that conclusion could have even worse and more long-lasting implications for Biden’s reelection bid than will Hur’s decision to clear Biden from criminal charges.
And some passages of the report seemingly suggested that Biden premeditated his decision to hold on to some pieces of classified material.
Hur said Biden retained documents related to the Afghanistan troop surge during the Obama administration because the then-vice president believed he was right to oppose Obama’s troop surge proposal.
“[Biden] always believed history would prove him right,” Hur wrote of Biden’s views on the matter. “He retained materials documenting his opposition to the troop surge, including a classified handwritten memo he sent President Obama over the 2009 Thanksgiving holiday, and related marked classified documents.”
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Biden’s desire to write a memoir also fueled his decision to hold on to sensitive notes, Hur said.
“According to a staffer involved in the project, Mr. Biden wanted to take copies of the notecards ‘so that he didn’t have to go to [the National Archives] every day to help write this book,’” the report said.
