US President Joe Biden answers questions from the press following his remarks regarding lowering cost for American families in the South Court Auditorium of the Eisenhower Executive Office Building on Thursday January 12, 2023.
Demetrius Freeman | The Washington Post | Getty Images
President Joe Biden “willfully retained and disclosed classified materials after his vice presidency,” according to a special counsel’s final report released Thursday.
But the special counsel, Robert Hur, said he was declining to prosecute Biden over his handling of classified documents about military and foreign policy in Afghanistan, and other material.
Hur in his nearly 400-page report wrote that Biden had portrayed himself as “an elderly man with a poor memory” who a criminal jury would find sympathetic.
“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.
But that evidence “does not establish Mr. Biden’s guilt beyond a reasonable doubt,” the special counsel wrote.
“We conclude that no criminal charges are warranted in this matter,” the report said. “We reach the same conclusion even if Department of Justice policy did not foreclose criminal charges against a sitting president.”
The report comes nearly 13 months after Attorney General Merrick Garland named Hur the special counsel to lead the probe into classified records that were found at the president’s office and residence in late 2022.
Hur’s report lands in the middle of a 2024 presidential race that is already spiked with legal intrigue and outrage.
Biden faces a likely rematch against former President Donald Trump, who is facing criminal charges over classified documents he took with him when he left the White House in 2021. When archivists noticed they were missing and asked Trump to return them, he refused.
Trump was charged in June, 2023, with 37 felonies, including willful retention of national defense information, a violation of the Espionage Act.
Trump had hundreds more classified documents in his possession than Biden did — more than 300 in total, including 102 that were seized during an August, 2022, FBI raid on Trump’s Palm Beach resort home. Trump has pleaded not guilty to the charges.
Biden’s timeline
On Nov. 2, 2022, Biden’s personal attorneys found documents bearing classified markings in a locked closet at the Penn Biden Center for Diplomacy and Global Engagement in Washington, D.C., the president’s lawyer said.
The files were discovered as the attorneys packed up and prepared to leave the think tank’s office, which Biden had “periodically” used as a private citizen before he launched his 2020 presidential campaign, according to the lawyer, Richard Sauber.
The records appeared to date back to the Obama administration, in which Biden served as vice president from 2008 to 2016, Sauber said. The White House counsel’s office contacted the National Archives on the day the documents were uncovered, he added.
The statement from Biden’s special counsel came Jan. 9, 2023, after CBS News first revealed the existence of the classified records.
Three days later, Sauber disclosed that Biden’s attorneys had found additional classified documents in a storage space in the garage of Biden’s home in Wilmington, Delaware.
After making that discovery on Dec. 20, 2022, those attorneys contacted then-U.S. attorney for Chicago John Lausch, whom Garland had initially tapped to handle the matter, according to Bob Bauer, one of Biden’s personal lawyers.
On Jan. 11, 2023, Biden’s lawyers located another document with classified markings in a room adjacent to the Wilmington home’s garage, Bauer said.
They told Lausch about it the following morning, Bauer said. Later that same day, Garland announced he was appointing Hur as special counsel to investigate the matter.
The attorney general can appoint a special counsel in order to carry out an investigation or prosecution that could pose a conflict of interest if conducted by the Justice Department itself.
Hur was appointed by Trump in 2018 to serve as U.S. attorney for Maryland. He resigned in 2021, later becoming a partner at the Washington, D.C., office of law firm Gibson, Dunn and Crutcher.
The White House has defended its decision to withhold the discovery of the records for more than two months, saying it was balancing public transparency with the need to cooperate with an ongoing federal investigation.
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