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Justice Department will not charge Biden in classified documents probe

President Biden, seen at the White House on Sept. 25, 2023. The Justice Department has concluded its investigation into classified documents found in Biden's residences and office space.
Susan Walsh
/
AP
President Biden, seen at the White House on Sept. 25, 2023. The Justice Department has concluded its investigation into classified documents found in Biden's residences and office space.

Updated February 8, 2024 at 4:23 PM ET

President Biden willfully held onto and disclosed classified materials after leaving the Obama administration and becoming a private citizen, but his actions do no warrant criminal charges, according to a Justice Department special counsel report report released Thursday.

The nearly 350-page reportfrom special counsel Robert Hur says the evidence did not establish Biden's guilt beyond a reasonable doubt.

"We conclude that no criminal charges are warranted in this matter," the report says. "We would reach the same conclusion even if Department of Justice policy did not foreclose criminal charges against a sitting president."

White the White House agreed with the decision that chargers were not warranted, a letter, lawyers for the president said "we disagree with a number of inaccurate and inappropriate comments in the Special Counsel's report" on the classified documents, including what it called "highly prejudicial language" to describe the president's memory.

White House lawyer Richard Sauber said the report shows that Biden cooperated with the investigation and said "mistakes when packing documents ... are unfortunately a common occurrence."

He said that Biden would take "new, substantive action to help prevent such mistakes in the future" but did not say what that action would be.

What the classified materials were

Hur's decision not to pursue charges against the president brings an end to a lengthy investigation that began after Biden's lawyers found classified documents in November 2022 in the offices of the Penn Biden Center in Washington, D.C.

Biden's personal attorneys turned over those materials, which were said to date to his time as vice president, to the National Archives and Records Administration. Federal agents then found a small number of additional classified documents in a search of Biden's home in Wilmington, Del. Agents also searched Biden's vacation home in Rehoboth Beach, Del., but did not turn up any sensitive materials.

Hurwas appointed as special counselto investigate the matter in January 2023.

Hur's report zeroes in on two buckets of classified materials in particular: documents about military and foreign policy in Afghanistan, and notebooks with Biden's handwritten notes about national security and foreign policy issues.

The documents about Afghanistan are from the fall of 2009, the report says, and were found in a box in Biden's Delaware garage. The materials marked classified were found along with drafts of the handwritten 2009 Thanksgiving memo that Biden sent then-President Obama to try to persuade Obama not to send more troops to Afghanistan.

"These material were proof of the stand Mr. Biden took in what he regarded as among the most important decisions of his vice presidency," the report says.

The handwritten notebooks, meanwhile, were found by FBI agents in unlocked drawers in the office and basement den of Biden's home in Delaware. The report says the evidence shows Biden knew the notebooks contained classified information.

And yet, Biden read entries aloud to his ghostwriter, according to the report.

"At least three times Mr. Biden read from classified entries aloud to his ghostwriter nearly verbatim," the report says.

It adds that evidence suggests Biden knew he was not allowed to keep classified handwritten notes at home after leaving office, but prosecutors do not believe the evidence was strong enough to show at trial that Biden intended to break the law.

"We expect that 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," the report says. "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.' "

Hur in his report described Biden as "a sympathetic, well-meaning, elderly man with a poor memory" and said it would have been "difficult to convince a jury that they should convict him ... of a serious felony that requires a mental state of willfulness" in his retention of classified Afghanistan documents. The report described Biden having trouble remembering timelines and details.

Where the case intersects with the election

Democrats had hoped the investigation would wrap up quickly so it would not become an issue in the presidential campaign. Instead, the probe lasted more than a year, and Hur's report now lands as Biden looks set to square off in the 2024 campaign in a rematch with former President Donald Trump.

Trump and former Vice President Mike Pence were embroiled in their own classified documents mishaps. Pence's case concluded quickly with no criminal charges filed.

Trump, on the other hand, is facing more than three dozen federal criminal charges after boxes of classified material were uncovered in unsecure locations at his Mar-a-Lago residence in Palm Beach, Fla. Trump and his associates have pleaded not guilty in the federal case, which is being prosecuted by special counsel Jack Smith.

Prosecutors allege that Trump had a direct hand in packing the material as he left the White House in 2021 and pushed his attorneys to mislead the FBI about what documents he had in his possession.

While both the Trump and Biden cases involve the retention of classified documents, there are significant differences between the two.

Biden's attorneys quickly returned the materials, and cooperated with investigators. Trump, in contrast, is accused of willfully keeping the records and actively trying to obstruct officials from recovering them.

The special counsel report Thursday also noted this distinction.

"It is not our role to assess the criminal charges pending against Mr. Trump, but several material distinctions between Mr. Trump's case and Mr. Biden's are clear," the report said. "Unlike the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts."

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