Joe Biden ‘willfully’ disclosed classified materials, but no criminal charges warranted - special counsel

President Joe Biden delivers remarks on the Emergency National Security Supplemental Appropriations Act in the State Dining Room of the White House, Tuesday, Feb. 6, 2024, in Washington. (AP Photo/Evan Vucci)

President Joe Biden “willfully” retained and disclosed highly classified materials when he was a private citizen, including documents about military and foreign policy in Afghanistan and other sensitive national security matters, according to a Justice Department report.

But the report says no criminal charges are warranted for him or anyone else.

The report from special counsel Robert Hur, released today, represents a harshly critical assessment of Biden’s handling of sensitive government materials but also details the reasons why he should not be charged with the crime.

The findings will likely blunt his ability to forcefully condemn Donald Trump, Biden’s likely opponent in November’s presidential election, over a criminal indictment charging the former president with illegally hoarding classified records at his Mar-a-Lago estate 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 wrote.

It came after a year-long investigation into the improper retention of classified documents by Biden, from his time as a senator and as vice president, that were found at his Delaware home, as well as at a private office he used in between his service in the Obama administration and becoming president.

The investigation into Biden is separate from special counsel Jack Smith’s inquiry into the handling of classified documents by Trump after Trump left the White House. Smith’s team has charged Trump with illegally retaining top secret records at Mar-a-Lago home and then obstructing government efforts to get them back. Trump has said he did nothing wrong.

After Biden’s lawyers uncovered classified documents at his former office, Biden’s representatives promptly contacted the National Archives to arrange their return to the government. The National Archives notified the FBI, which opened an investigation. Biden made his homes available to agents to conduct thorough searches, and that is how the most sensitive documents came to the attention of the Justice Department.

The cluttered garage of US President Joe Biden. Photo / AP

Biden could not have been prosecuted as a sitting president, but Hur’s report states that he would not recommend charges against Biden regardless.

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

Part of the report centres on Biden’s handling of classified documents about Afghanistan — specifically, the Obama administration’s decision to send additional troops there — that he retained in his Delaware home after he left office as vice president. Biden preserved materials documenting his opposition to the troop surge, including a 2009 classified handwritten memo to then-president Barack Obama.

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

The documents have classification markings up to the Top Secret/Sensitive Compartmented Information level and were found in a box in Biden’s Delaware garage “that contained other materials of great significance to him and that he appears to have personally used and accessed”.

US Attorney Robert Hur. Photo / AP

Photographs included in the report show some of the classified Afghanistan documents stored in a worn cardboard box stored in his garage, apparently in a loose collection with other household items, including a ladder and a wicker basket.

Classified documents from the Obama administration were also found in Biden’s basement den, according to the report. Classified documents from his time in the Senate in the 1970s and 1980s were also found in his garage.

Despite signs Biden knowingly retained and disclosed classified materials, Hur’s report said criminal charges were not merited for multiple reasons. Those include the fact that as vice president, and during his subsequent presidency when the Afghanistan records were found, “he had the authority to keep classified documents at his home.”

As part of the probe, investigators reviewed a recording of a February 2017 conversation between Biden and his ghostwriter in which, referring to the 2009 memo to Obama, Biden said that he had “just found all the classified stuff downstairs”. Biden was renting a home in Virginia at the time and consolidated his belongings in Delaware when he moved out in 2019. Prosecutors believe Biden’s comment was a reference to the same classified records that FBI agents later found in his Delaware home.

Though the best case for charges could involve his possession of the Afghanistan documents as a private citizen, prosecutors said, it was possible Biden could have found those records at his Virginia home in 2017 and then forgotten about them soon after.

A damaged box where classified documents were found in the garage of US President Joe Biden. Photo / AP

“This could convince some reasonable jurors that he did not retain them willfully,” the report.

The report said there was some evidence to suggest Biden knew he could not keep classified handwritten notes at home after leaving office, citing his deep familiarity “with the measures taken to safeguard classified information and the need for those measures to prevent harm to national security”. Yet he kept notebooks containing classified information in unlocked drawers at home.

“He had strong motivations to do so and to ignore the rules for properly handing the classified information in his notebooks,” the report said. “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 report removes legal jeopardy for the president, it is nonetheless an embarrassment for Biden, who placed competency and experience at the core of his rationale to voters to send him to the Oval Office.

“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,” the report states. “And there was no procedure at all for tracking some of the classified material Mr Biden received outside of his briefing books”

In declining to prosecute Biden, Hur’s office also cited what it said was Biden’s “limited memory” both during his 2017 recorded conversations with the ghostwriter and in 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,” investigators wrote.

There is recent Justice Department precedence for criminal charges against individuals accused of sharing classified information with biographers or ghostwriters; David Petraeus pleaded guilty to doing exactly that in 2015 and was sentenced to probation.

Yet in this instance, prosecutors say, Biden could have plausibly believed the notebooks were his personal property and belonged to him, even if they contained classified information.

In an interview with prosecutors, the report said, Biden was emphatic with investigators that the notebooks were “my property” and that “every president before me has done the exact same thing”.

White House lawyers and Biden’s personal attorney were allowed to review and comment on the report. Biden chose not to assert executive privilege over any portion of the report, White House counsel’s office spokesman Ian Sams said.

Attorney General Merrick Garland in January 2023 named Hur, a former US attorney for Maryland, to handle the politically sensitive Justice Department inquiry in an attempt to avoid conflicts of interest. It is one of three recent Justice Department investigations into the handling of classified documents by politically prominent figures.