A special counsel concluded that President Joe Biden should not face criminal charges even though investigators found he retained and disclosed classified materials after serving as vice president, according to a report released Thursday.
Special Counsel Robert K. Hur wrote in the report that he would reach the same conclusion even if Justice Department policy did not prevent charges against a sitting president. He also highlighted how Biden cooperated with the probe and sat for an interview with investigators last year.
And Hur wrote extensively about Biden’s potential defenses and why he did not think Biden should be charged with a crime or would be found guilty by a jury.
That included a discussion of how Biden’s memory was “significantly limited” during both the interview with investigators and a 2017 interview with a ghostwriter where Biden discussed holding onto classified material.
“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,” Hur wrote.
“It would be difficult to convince a jury that they should convict him — by then a former president well into his eighties — of a serious felony that requires a mental state of willfulness,” Hur wrote.
Biden defiantly challenged that assertion in a televised statement from the White House Thursday night.
“My memory is fine,” Biden said. He noted that Hur had questioned his memory after asking him if he remembered when his son, Beau Biden, died.
“How the hell dare he raise that? Frankly, when I was asked the question, I thought to myself, it wasn’t any of their damn business,” Biden said, before lifting his arm to show a rosary of his son’s he wears.
Biden said he was pleased that Hur found criminal charges were not warranted and noted that the special counsel made a distinction between Biden’s handling of classified documents and former president Donald Trump’s.
Biden stated he did not share classified information with a ghostwriter as he was accused of doing. He said he discussed a letter he had written to President Barack Obama, which he should have described as private.
He noted he gave an interview to Hur while he was managing the crisis surrounding the Hamas attack into Israel, and he blasted Hur for making characterizations about his memory.
“Their task was to make a decision about whether to move forward with charges in this case. That was their decision to make, that’s a counsel’s decision to make. That’s his job. And they decided not to move forward. For any extraneous commentary, they don’t know what they’re talking about. It has no place in this report,” Biden said.
At the conclusion of the press conference, as he was walking away, Biden returned to the podium to answer a question about the war in the Middle East and appeared to confuse the presidents of Egypt and Mexico.
The nearly 400-page report, which concludes an investigation that lasted a little over a year, is sure to give Republicans campaign trail fodder as they seek to slam Biden and defend Trump, the front-runner for the Republican nomination who faces federal charges related to retaining classified information.
“The special counsel decided not to bring charges against Biden because they believe he has age related dementia,” Sen. Marco Rubio posted Thursday on X, the platform formerly known as Twitter.
Trump, in a written statement, called for his case to be dropped and described the report as evidence of a “TWO-TIERED SYSTEM OF JUSTICE AND UNCONSTITUTIONAL SELECTIVE PROSECUTION!”
Biden, addressing the House Democrats’ retreat earlier Thursday, said the report detailed how he cooperated completely and had been interviewed for five hours over two days last year — in the days after the Hamas attack on Israel on Oct. 7.
“I was especially pleased to see the Special Counsel made clear the stark differences between this case and Donald Trump,” Biden said.
He quoted parts of the report that state Trump is accused of refusing to return documents for months, and allegedly sought to obstruct justice by getting others to destroy evidence, while Biden turned in classified documents, agreed to property searches and sat for a voluntary interview.
In the report, Hur wrote that Biden’s cooperation and self-reporting of certain documents “will likely convince some jurors that he made an innocent mistake, rather than acting willfully — that is, with intent to break the law — as the statute requires.”
The report includes a Feb. 5 letter to Hur from Richard Sauber, special counsel to the president, and Bob Bauer, Biden’s personal attorney, which contests the description of Biden’s memory as not accurate or appropriate and criticizes the report for mentioning his memory nine times.
“The report uses highly prejudicial language to describe a commonplace occurrence among witnesses: a lack of recall of years-old events,” Sauber wrote. “There is ample evidence from your interview that the President did well in answering your questions about years-old events over the course of five hours.”
In a joint statement Thursday, House Republican leadership criticized the treatment of Trump and highlighted the statements from the report about Biden’s memory.
“A man too incapable of being held accountable for mishandling classified information is certainly unfit for the Oval Office,” the statement said.
The report also outlined a sprawling special counsel investigation, in which officials interviewed 147 witnesses, including the president himself, and collected more than 7 million documents, which included emails, text messages and videos.
Investigators found Biden had held onto classified documents about military and foreign policy in Afghanistan as well as his hand-written notes that included information about classified sources and methods, the report said.
Biden regarded himself as a “historic figure” who collected mementos of his decades in public life, Hur wrote, which included classified information like a 2009 memorandum Biden wrote to then-President Barack Obama opposing a deployment of additional troops to Afghanistan.
Hur wrote that Biden regularly wrote notes about classified material and held onto those notebooks. Biden also used those notebooks as reference materials for his 2017 book, “Promise me, Dad,” although that book did not appear to include classified material, the report states.
Trump is facing criminal counts in a special counsel investigation overseen by John L. “Jack” Smith. Last year, federal prosecutors unveiled more than two dozen charges against Trump tied to retaining classified documents and taking efforts to hide them from authorities.
Prosecutors alleged that Trump held onto hundreds of classified documents, including some of the most sensitive national secrets, unsecured at his Florida club, Mar-a-Lago. When asked to return them by the National Archives and Records Administration, Trump took steps to hide the documents and subvert a search with a subpoena, prosecutors alleged.
Eventually investigators searched the club with a warrant and recovered hundreds of documents.
That case was originally scheduled for trial in May but the Florida federal judge handling the case has weighed delaying the proceeding due to the amount of classified material involved.
Attorney General Merrick B. Garland named Hur as a special counsel after classified documents were discovered at the Penn Biden Center for Diplomacy and Global Engagement in Washington and at Biden’s private residence in Wilmington, Delaware.
Garland initially tasked John R. Lausch Jr., a Trump appointee who was then serving as U.S. attorney in the Northern District of Illinois, to do an initial investigation into the matter. Garland said he decided that a special counsel investigation was based on the initial investigation.
Hur is a former U.S. attorney for the District of Maryland and was appointed to the position by Trump.
Niels Lesniewski contributed to this report.