Biden Classified Docs Report: Insult, Not Injury
The president won't be indicted, but the special counsel’s report puts his chief political vulnerability—his age—back in the spotlight.
THE 388-PAGE REPORT ON PRESIDENT JOE BIDEN’S handling of classified documents has some slivers of good news for the president. But in the hours since its release, he has already suffered political damage—from which Donald Trump has profited.
Special Counsel Robert K. Hur’s investigation was prompted by revelations that Biden had stored classified documents in his Delaware home and other locations after his vice presidency. The publication on Thursday of Hur’s exhaustive report brings that investigation to a close. The most important legal outcome: Biden will not be indicted for violating the Espionage Act as has been Donald Trump. “We would reach the same conclusion” about not indicting Biden, states the report in its opening sentences, “even if Department of Justice policy did not foreclose criminal charges against a sitting president.” This absolution is not a complete surprise.
No matter, Trump is already complaining in his characteristic insane and mendacious fashion, shouting in all caps about “ELECTION INTERFERENCE.”
The Biden Documents Case is 100 times different and more severe than mine. I did nothing wrong, and I cooperated far more. What Biden did is outrageously criminal - He had 50 years of documents, 50 times more than I had, and “WILLFULLY RETAINED” them.
All of this is false except for the quoted “willfully retained.” Willfulness is a slippery concept; to be successful, a prosecution of Biden would have had to demonstrate to a jury beyond a reasonable doubt that he acted willfully—that is, that he “intended to do something the law forbids.”
The report does indeed state that Biden “willfully retained” classified documents. But that is a puzzling claim, for Hur also goes on to show, repeatedly, that convincing a jury of Biden’s willfulness would have been an insuperable barrier to a successful prosecution.
There are two categories of secrets at issue. The first is the classified documents found at the Penn Biden Center and in collections of Biden’s Senate papers at the University of Delaware. These were not “willfully” retained, finds Hur. They “could plausibly have been brought to these locations by mistake” and not necessarily by Biden himself. Here Hur takes notice of the “numerous previous instances in which marked classified documents have been discovered intermixed with the personal papers of former Executive Branch officials and members of Congress.” Indeed, as Hur also notes about the historical record, “many former presidents and vice presidents have knowingly taken home sensitive materials related to national security from their administrations without being charged with crimes.”
The second category is classified papers pertaining to the war in Afghanistan and Biden’s handwritten notebooks containing entries concerning national security matters that were found in the basement den, the offices, and the garage of his Wilmington, Delaware home. Some of these materials implicated “sensitive intelligence sources and methods” and were classified as Top Secret/Sensitive Compartmented Information—a level employed to protect the nation’s most tightly guarded secrets. Both as president and vice president, Biden was entitled to keep such documents in his home. It was in the interim between his vice presidency and his presidency that the alleged violations occurred.
Biden had also stored these classified papers pertaining to Afghanistan in a rented home in Virginia where, together with a ghostwriter with whom he shared some of the secret information, he was working on his second memoir, Promise Me, Dad. Hur obtained a tape recording of Biden’s conversation with his ghostwriter in February 2017, from approximately a month after he left the vice presidency, in which he stated he had “just found all the classified stuff downstairs.”
Even here, concludes Hur, regarding this, the “best case for charges,” a jury examining the totality of the circumstances would be unlikely to find Biden guilty beyond a reasonable doubt. Hur walks through his reasoning—and again, the difficulty of proving willfulness figures heavily.
Mr. Biden could have found the classified Afghanistan documents at his Virginia home in 2017 and then forgotten about them soon after. This could convince some reasonable jurors that he did not retain them willfully. When Mr. Biden told his ghostwriter about finding “all the classified stuff downstairs,” his tone was matter-of-fact. For a person who had viewed classified documents nearly every day for eight years as vice president, including regularly in his home, finding classified documents at home less than a month after leaving office could have been an unremarkable and forgettable event. Notably, the classified Afghanistan documents did not come up again in Mr. Biden’s dozens of hours of recorded conversations with the ghostwriter, or in his book. And the place where the Afghanistan documents were eventually found in Mr. Biden’s Delaware garage—in a badly damaged box surrounded by household detritus—suggests the documents might have been forgotten.
This record, though it does show mishandling of government secrets, stands in the sharpest contrast to the behavior of Donald Trump, who faces forty felony counts in connection with illicitly retaining government secrets. There were serious aggravating factors which necessitated the Trump indictment, which Hur rehearses. Most notably, Hur writes, “after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite” and retained them for many months. Worse, “he also obstructed justice by enlisting others to destroy evidence and then to lie about it.”
Biden’s case is entirely different. Indeed, as soon as the secret documents in his home came to light, he behaved in exemplary fashion. He turned them over to the National Archives and the Department of Justice and, as Hur notes, “consented to the search of multiple locations including his homes, sat for a voluntary interview, and in other ways cooperated with the investigation.”
ALL THIS WOULD NOT BE SO BAD FOR BIDEN if Hur had not characterized Biden in extraordinarily damaging ways. In particular, he makes out the 81-year-old to be senescent: “Mr. Biden’s memory was significantly limited,” he writes. Biden had “limited precision and recall.” 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.” In an extended passage, there is more:
In his interview with our office, Mr. Biden’s memory was worse. 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 (“in 2009, am I still Vice President?”). He did not remember, even within several years, when his son Beau died.
Hur, it must be pointed out, is a Republican, and Biden supporters are already crying foul. Biden himself has pushed back hard, declaring in a Thursday evening press conference that his memory was just fine and that the special counsel’s comments were gratuitous—but then embarrassingly referring to Mexico when describing his policy toward Egypt. Whatever the case, at a moment when Republicans are painting Biden as senile, a finding like this in an official Department of Justice document is not helpful, to say the least.
Whether Hur is acting in bad faith is impossible to know, let alone prove. (Willfulness, it turns out, can be as difficult to establish in politics as in the law.) But in declining to recommend charging Biden, Hur certainly establishes some good faith bona fides.
On the other hand, the Hur report is inevitably going to prompt further debate about Biden’s fitness for another four-year term of office—including awkward discussions about whether his memory has indeed deteriorated and whether the Democratic party should get a new presidential ticket. Polls make clear that American voters do not relish the thought of a rematch between these two old candidates. Democrats will surely spend the weekend asking themselves whether the country really must face a choice between a 77-year-old sociopath and an 81-year-old “elderly man with a poor memory.” Choosing between them is easy, but heaven help us.