Joe Biden will not face charges for his retention of classified material, but the report from Special Counsel Robert Hur could still prove damaging politically.
House Republicans already were claiming “double standard” just minutes after the report was released, as former President Donald Trump has been criminally charged with his failure to turn over classified documents after leaving the White House.
More from Deadline
“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 stated, although Hur later acknowledged that there was a “shortage of evidence” that Biden put classified material on Afghanistan “on purpose.”
But journalists quickly seized on another line in the report, explaining the reasoning for bringing no charges: “We have considered that, at trial, Mr. Biden would likely present himself to a jury, as he did in our interview of him, as a sympathetic, well-meaning elderly man with a poor memory.”
Hur made multiple references to Biden’s memory, feeding into Republicans’ narrative that the president is in cognitive decline.
“He did not remember when he was vice president, forgetting on the first day of the interview when his term ended (‘if it was 2013 – when did I stop being Vice President?’) and forgetting on the second day of the interview when his term began,” Hur’s report stated. He also wrote that Biden “did not remember, even within several years, when his son Beau died.”
“In a case where the government must prove that Mr. Biden knew he had possession of the classified Afghanistan documents after the vice presidency and chose to keep those documents, knowing he was violating the law, we expect that at trial, his attorneys would emphasize these limitations in his recall.”
Richard Sauber, special counsel to the president, said in a statement, “As the Special Counsel report acknowledges, mistakes when packing documents at the end of an Administration or when Members of Congress leave office are unfortunately a common occurrence. It’s happened with every Administration, Republican and Democrat, for the past 50 years. Now that this investigation has concluded, President Biden plans to take new, substantive action to help prevent such mistakes in the future and will announce it soon.
Sauber added, “We disagree with a number of inaccurate and inappropriate comments in the Special Counsel’s report. Nonetheless, the most important decision the Special Counsel made – that no charges are warranted – is firmly based on the facts and evidence.”
Biden said in a statement, “I was pleased to see they reached the conclusion I believed all along they would reach – that there would be no charges brought in this case and the matter is now closed.
“This was an exhaustive investigation going back more than 40 years, even into the 1970s when I was a young Senator. I cooperated completely, threw up no roadblocks, and sought no delays. 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. I just believed that’s what I owed the American people so they could know no charges would be brought and the matter closed.
“Over my career in public service, I have always worked to protect America’s security. I take these issues seriously and no one has ever questioned that.”
Hur distinguished the Biden case from that of Trump, writing that the allegations in the former president’s indictment, “if proven, would present serious aggravating facts.”
“Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then ti lie about it.”
In his classified documents case, Trump faces charges including willful retention of national defense information, false statements and representations and conspiracy to obstruct justice. A trial is scheduled for May.
Nevertheless, Trump railed against the decision not to prosecute Biden, saying in a statement, “The Biden Documents Case is 100 times different and more severe than mine. I did nothing wrong, and I cooperated far more.”
Best of Deadline