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Biden ‘willfully’ kept classified materials, had ‘poor memory’: special counsel

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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 final report released Thursday by a Department of Justice special counsel.

But special counsel Robert Hur said he was declining to prosecute Biden over his handling of that material

The FBI found that material in the garage, offices, and basement den in Biden’s Wilmington, Delaware, home. It included documents about military and foreign policy in Afghanistan, and notebooks containing Biden’s entries about national security, the new report said.

“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.

“He knew he kept classified information in notebooks stored in his house and he knew he was not allowed to do so.”

But that evidence “does not establish Mr. Biden’s guilt beyond a reasonable doubt,” the special counsel wrote.

Hur in his nearly 400-page report wrote, “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.”

“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 special counsel said that Biden had shared some classified information with his ghostwriter for his second memoir, “Promise Me, Dad,” published in 2017, which Hur said did not appear to contain any classified information.

Hur was blunt in detailing lapses in Biden’s memory when he was interviewed for the probe.

“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?’),” the report said.

“He did not remember, even within several years, when his son Beau died. And his memory appeared hazy when describing the Afghanistan debate that was once so important to him,” Hur wrote.

“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,” the special counsel added.

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 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 FBI raid on Trump’s Palm Beach resort home in August 2022. Trump has pleaded not guilty to the charges.

Hur’s report Thursday said that the materials recovered from Biden spanned his career in national office from 1973 when he became a U.S. senator, and through his two terms as vice president under former President Barack Obama from 2009 through early 2017.

Biden during his career “has long seen himself as a historic figure,” and during that time collected papers and artifacts that were connected to “significant issues and events in his career,” the report said.

“He used these materials to write memoirs published in 2007 and 2017, to document his legacy, and to cite as evidence that he was a man of presidential timber,” Hur wrote.

Richard Sauer, who is special counsel to Biden, in a statement, said, “We are pleased that this investigation has concluded and that the Special Counsel [Hur] found ‘no criminal charges are warranted in this matter,’ even if the President were out of office and a private citizen.

Sauer said the report recognized that Biden “fully cooperated” from the outset of the probe, and his team “promptly self-reported that classified documents were found” and returned to the government.

“The simple truth is President Biden takes classified information seriously and strives to protect it.” Sauer said. “He has spent decades at the highest levels of government defending and advancing America’s national security and foreign policy interests and protecting her secrets.”

Sauer said Biden disagreed with a “number of inaccurate and inappropriate comments” in the report. He did not identify those comments.

Biden’s timeline

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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.

This is breaking news. Please check back for updates.

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