Special counsel finds Biden ‘willfully’ retained classified documents, no charges filed

A special counsel investigating President Biden’s handling of classified materials concluded his case, determining that Biden “willfully” retained classified documents but stopping short of bringing charges against the president.

Special counsel Robert Hur released his findings in a 388-page report after a roughly yearlong investigation into how classified documents from Biden’s time as vice president ended up at an old office space and at his Wilmington, Del., home.

Attorney General Merrick Garland appointed Hur in January as a special counsel, tasking him with determining whether any laws were violated given the mishandling of the records.

While Hur concluded neither Biden nor his staff broke the law in removing the records, he was critical of their handling of the sensitive records.

“Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen,” the report states, including “documents about military and foreign policy in Afghanistan” and “handwritten entries about issues of national security and foreign policy implicating sensitive intelligence sources and methods” that he kept in an unlocked drawer.

“However, for the reasons summarized below, we conclude that the evidence does not establish Mr. Biden’s guilt beyond a reasonable doubt.”

The White House declined to assert privilege over any portion of the report, allowing its swift release the day after Congress was notified Hur completed his work.

The report indicates authorities took 90 documents from Biden’s office and home alongside his notebooks, though only about 50 of the documents bore classified markings.

Hur describes the items kept by Biden as being of “great personal significance to him,” noting his opposition to the war in Afghanistan sparked criticism but that “he always believed history would prove him right.”

Among the items kept by Biden were a letter to then-President Obama opposing a troop surge in the country.

“These materials were proof of the stand Mr. Biden took in what he regarded as among the most important decisions of his vice presidency,” the report states.  

But Hur said there were numerous aspects of the saga that would work against prosecutors seeking to convince a jury beyond a reasonable doubt if they brought charges. 

He noted that the Afghanistan documents were “in Mr. Biden’s Delaware garage-in a badly damaged box surrounded by household detritus,” and that other details would cut against a case he retained them willfully.

“We would reach the same conclusion even if Department of Justice policy did not foreclose criminal charges against a sitting president,” Hur wrote.

Still, in determining that Biden would prompt sympathy from jurors that would leave prosecutors unlikely to score a conviction, the report offers a raw assessment of the president’s mental state at a moment he is battling assertions on the campaign trail that he is too old to seek reelection.

“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 states. 

“Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. 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.” 

The White House was “pleased” the investigation concluded and determined charges were not warranted, even if Biden were a private citizen, White House special counsel Richard Sauber said in a statement.

“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,” Sauber said, calling Biden’s cooperation with the probe “extraordinary.”

“We disagree with a number of inaccurate and inappropriate comments in the Special Counsel’s report,” Sauber continued. “Nonetheless, the most important decision the Special Counsel made—that no charges are warranted—is firmly based on the facts and evidence.”

Sauber said Biden would pursue new actions in the wake of the report to prevent future mistakes that can lead to officials keeping classified materials at the end of an administration or congressional terms.

Documents with classified markings were first found at a University of Pennsylvania office in Washington, D.C., that Biden used after the end of the Obama administration. Those documents were found by officials clearing out the office in November 2022, but the discovery was not publicly disclosed until January 2023.

The news prompted additional searches of Biden’s property, resulting in the discovery of additional records at Biden’s Delaware home. 

Biden has maintained he did nothing wrong, and his team has repeatedly noted that his lawyers quickly notified the National Archives and cooperated with the Justice Department after discovering the documents.

Biden also sat for an interview in October with Hur over the course of two days.

“I cooperated completely, threw up no roadblocks, and sought no delays,” Biden said in a statement Thursday. 

“In fact, I was so determined to give the Special Counsel what they needed that I went forward with five hours of in-person interviews over two days on October 8th and 9th of last year, even though Israel had just been attacked on October 7th and I was in the middle of handling an international crisis.”

Portions of the interview from the report suggest Biden believed he was allowed to retain his handwritten notes as his own property.

“We expect Mr. Biden’s defense at trial would be that he thought his notebooks were his personal property and he was allowed to take them home, even if they contained classified information. During our interview of him, Mr. Biden was emphatic, declaring that his notebooks are ‘my property’ and that ‘every president before me has done the exact same thing,’” including former President Reagan, the report states. 

The assertions Biden disclosed classified information stem from sessions with the ghostwriter of his book, where the special counsel said Biden read passages from his handwritten notes.

“Mr. Biden sometimes skipped over presumptively classified material and warned his ghostwriter the entries might be classified, but at least three times Mr. Biden read from classified entries aloud to his ghostwriter nearly verbatim,” Hur wrote.

The release of the report highlighted Congressional division over how the Justice Department handled the case and ignited comparisons with the ongoing prosecution of former President Trump.

For Democrats, the outcome for Biden was a sign Trump likely could have avoided charges by simply cooperating with prosecutors and turning over the documents. 

“MAGA Republicans will no doubt now call to investigate the investigators—it’s their favorite move—but the Hur report effectively ends the discussion. President Biden cooperated fully with the Special Counsel and redacted no portion of the Special Counsel’s report,” Rep. Jerry Nadler (D-N.Y.), the ranking member on the House Judiciary Committee, said in a statement.

“And the contrast here is striking. If Trump had cooperated with the Department of Justice—instead of lying to investigators, again and again—he might have avoided at least some of the 91 criminal charges currently pending against him.”

But the panel’s Republicans took to X, formerly known as Twitter, to call the declination to prosecute a “double standard” that came “despite the fact that Hur acknowledges Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen. 

A separate special counsel, Jack Smith, had already been appointed to oversee the investigation into Trump’s mishandling of records, after roughly 300 records bearing classified markings were discovered at his Mar-a-Lago residence in Florida. 

Trump was charged in June by the Justice Department over his retention of those documents. Trump has pleaded not guilty to the charges, which allege he violated the Espionage Act and obstructed justice in taking classified records from his presidency and refusing to return them.

While Trump has tried to draw parallels between his case and the investigation into Biden, they differ in significant ways.

Among boxes and boxes of presidential records he also tried to retain as his personal property, Trump kept a collection of some of the nation’s most heavily guarded national secrets, with folders bearing labels for some of the most restricted forms of intelligence.

And Trump had a much larger tranche of documents at his Florida home, and resisted multiple calls — including through a subpoena — to return them.

A superseding indictment filed by the Justice Department in the case also detailed how Trump coordinated with Mar-a-Lago employees to shuffle the boxes of records across the property in an effort to conceal them both from investigators as well as his own attorney, who was seeking to comply with the subpoena.

Those details are key to the case, as Espionage Act violations require showing willful retention of national defense information.

By contrast, Biden’s counsel said his attorneys handed the documents over to the National Archives the following morning after alerting the agency of the discovery. The Archives took possession of the materials and then referred the matter to the Justice Department.

Updated at 4:15 p.m. ET