According to a Justice Department report, President Joe Biden “willfully” retained and disclosed highly classified materials as a private citizen, including documents on military and foreign policy in Afghanistan and sensitive national security matters. However, no criminal charges are warranted for him or anyone else involved.
Special counsel Robert Hur’s report, issued Thursday, strongly criticizes Biden’s handling of classified government materials, but also explains why he should not be prosecuted with the crime.
The results will most likely limit his ability to strongly attack Donald Trump, Biden’s likely opponent in the November presidential race, over a criminal charge charging the former president with illegally storing sensitive records at his Mar-a-Lago home in Florida.
“Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen,” Hur said in a statement.
According to Hur’s assessment, evidence indicated that many of the secret documents discovered by investigators at the Penn Biden Center, parts of Biden’s Delaware residence, and his Senate archives at the University of Delaware were retained by “mistake.”
Biden stated in a statement that he was “pleased” that the special counsel had “reached the conclusion I expected all along — that no charges would be brought in this case and the matter is now closed.”
He made it clear that he sat for five hours of in-person interviews over two days on Oct. 8 and 9, “despite the fact that Israel had just been attacked on October 7th and I was in the midst of an international crisis.”
“I just believed that’s what I owed the American people so they could know no charges would be brought and the matter closed,” Biden said in a statement.
The report follows a year-long investigation into Biden’s improper retention of classified documents from his time as a senator and vice president, which were discovered at his Delaware home and a private office he used between his service in the Obama administration and becoming president.
The probe investigating Biden is separate from Special Counsel Jack Smith’s inquiry into Trump’s handling of secret documents after leaving the White House. Smith’s team has charged Trump with illegally storing top-secret documents at his Mar-a-Lago estate and then hindering government efforts to get them. Trump has said he did nothing wrong.
After Biden’s lawyers discovered classified documents in his previous office, his counsel immediately called the National Archives to arrange for their return to the government. The National Archives alerted the FBI, which launched an inquiry. Biden allowed investigators to conduct thorough searches in his homes, which is how the Justice Department learned about the most sensitive materials.
Hur concluded that the evidence did not support Biden’s purposeful retention of some of the found sensitive materials, including those at the Penn Biden Center, which started the investigation.
Biden could not have been charged while serving as president, but Hur’s report implies that he would not recommend charges against him nonetheless.
“We would reach the same conclusion even if Department of Justice policy did not foreclose criminal charges against a sitting president,” said the report’s authors.
Part of the study focuses on Biden’s handling of sensitive materials about Afghanistan, specifically the Obama administration’s decision to send more soldiers there, which he kept after leaving office as vice president in his Delaware home. Biden kept documents proving his opposition to the troop increase, including a 2009 classified handwritten message to then-President Barack Obama.
“These materials were proof of the stand Mr. Biden took in what he regarded as among the most important decisions of his vice presidency,” according to the report.
The records, classified up to the Top Secret/Sensitive Compartmented Information Level, were discovered in a box in Biden’s Delaware garage “that contained other materials of great significance to him, which he appears to have personally used and accessed.”
Photographs in the investigation showed some of the classified Afghanistan documents stashed in a weathered cardboard box in his garage, seemingly in a loose collection alongside other home goods such as a ladder and a wicker basket.
Classified materials from the Obama administration were also discovered in Biden’s underground den, according to reports. Classified records from his stint in the Senate during the 1970s and 1980s were also discovered in his garage.
Despite evidence that Biden willfully stored and disseminated classified materials, Hur’s assessment concluded that criminal charges were not warranted for several reasons. Those include the fact that as vice president, and later during his administration when the Afghanistan records were discovered, “he had the authority to keep classified documents at his home.”
As part of the investigation, investigators listened to a recording of a February 2017 discussion between Biden and his ghostwriter in which Biden mentioned the 2009 memo to Obama, saying that he had “just found all the classified stuff downstairs.” Biden was renting a property in Virginia at the time and concentrated his stuff in Delaware before moving out in 2019. Prosecutors suspect Biden was referring to the same sensitive records discovered by FBI officers in his Delaware residence.
Though the clearest evidence for charges could be his possession of the Afghanistan documents as a private citizen, prosecutors argued Biden could have discovered the data at his Virginia home in 2017 and then forgotten about them shortly after.
“This could convince some reasonable jurors that he did not retain them willfully,” according to the report.
According to the report, there was some evidence that Biden knew he couldn’t keep classified handwritten notes at home after leaving office, citing his familiarity “with the measures taken to safeguard classified information and the need for those measures to prevent harm to national security.” However, he kept notebooks containing secret information in unsecured drawers at home.
“He had strong motivations to do so and to ignore the rules for properly handing the classified information in his notebooks,” according to the study. “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.”
While the study spares the president from legal risk, it is an embarrassment for Biden, who relied on ability and expertise to persuade people to elect him to the presidency.
“Mr. Biden was known to remove and keep classified material from his briefing books for future use, and his staff struggled — and sometimes failed — to retrieve those materials,” according to the study. “And there was no procedure at all for tracking some of the classified material Mr. Biden received outside of his briefing books”
Hur’s office declined to prosecute Biden, citing Biden’s “limited memory” during his 2017 taped talks with the ghostwriter and an interview with investigators last year.
“Given Mr. Biden’s limited precision and recall during his interviews with his ghostwriter and with our office, jurors may hesitate to place too much evidentiary weight on a single eight-word utterance to his ghostwriter about finding classified documents in Virginia, in the absence of other, more direct evidence.”
“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 investigation’s authors said.
There is recent Justice Department precedent for criminal charges against individuals accused of disclosing secret information to biographers or ghostwriters. In 2015, General David Petraeus pled guilty to doing just that and was sentenced to probation.
In this case, however, prosecutors argue that Biden may have reasonably concluded that the notebooks were his personal property and belonged to him, even if they contained secret material.
According to the report, Biden told prosecutors in an interview that the notebooks were “my property” and that “every president before me has done the exact same thing.”
White House lawyer Richard Sauber stated that Biden takes classified information seriously and “strives to protect it,” but mishaps while packing documents at the conclusion of an administration are frequent, according to the report.
“We disagree with several erroneous and inappropriate statements in the special counsel’s report. Nonetheless, the special counsel’s most important decision—that no charges are warranted—is solidly based on the facts and evidence,” Sauber stated.
Bob Bauer, Biden’s personal attorney, accused the special counsel of breaking “well-established” rules and “trashing” the President.
“Given the current political environment’s tremendous demands, it’s not surprising that the special counsel couldn’t resist going beyond with his investigation. Whatever the impact of those demands on the final report, it violates department policies and standards,” he said in a statement.
Trump issued a statement in response to the allegations as he prepared to attend the Republican caucuses in Nevada on Thursday evening. “THIS IS A TWO-TIERED SYSTEM OF JUSTICE!” he declared in a statement, adding that Biden’s case was “100 times different and more severe than mine.”
“I did nothing wrong, and I collaborated much more. “What Biden did is outrageously criminal – He had 50 years of documents, 50 times more than I had, and “WILLFULLY RETAINED” them,” Trump stated, once again accusing “ELECTION INTERFERENCE!”
White House lawyers and Biden’s personal counsel had the opportunity to examine and comment on the report. According to Ian Sams, spokesman for the White House Counsel’s Office, Biden elected not to assert executive privilege over any aspect of the study.
In an effort to prevent conflicts of interest, Attorney General Merrick Garland appointed Hur, a former United States Attorney for Maryland, to oversee the politically sensitive Justice Department investigation in January 2023. It is one of three recent Justice Department investigations concerning how politically influential individuals handled secret documents.