By Tyler O’Neil
The Daily Signal
Special counsel Robert Hur released a report Thursday recommending against charging President Joe Biden for retaining classified documents from his years as vice president and senator, in part because the jury would find Biden sympathetic as an “elderly man with a poor memory” and because his “diminished faculties” make it less likely he intentionally violated the law.
In January 2023, Attorney General Merrick Garland tapped Hur, the U.S. attorney in Maryland appointed by then-President Donald Trump, to investigate Biden’s improper retention of classified documents after he left the Senate in 2009 and the vice presidency in 2017.
The records Biden kept included classified documents regarding military and foreign policy in Afghanistan, along with national security records that implicated “sensitive intelligence sources and methods,” Hur’s report finds.
The special counsel’s report finds a “shortage of evidence” proving that Biden intentionally violated the law and concludes “there are other innocent explanations for the documents that we cannot refute.” Yet the report also finds that Biden “willfully retained and disclosed classified materials.”
An attorney for Biden claimed the classified documents were “unexpectedly discovered” Nov. 2, 2022, at the Penn Biden Center for Diplomacy and Global Engagement in Washington, D.C., and that he immediately notified the National Archives and Records Administration. Biden lawyers later discovered a “small number” of additional classified documents in a storage space in the garage of Biden’s private home in Wilmington, Delaware.
These admissions from Biden’s attorneys came after the FBI opened an investigation into Trump’s alleged mishandling of classified documents in March 2022. Eight months later, Garland appointed former DOJ official Jack Smith to investigate Trump’s retention of classified documents. A grand jury ultimately indicted Trump for his alleged offenses in June 2023.
Hur’s report notes Biden’s willing cooperation with his investigation, saying that cooperation “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.”
Hur’s report also takes Biden’s mental state into account on numerous occasions, finding that his “poor memory” and “diminished faculties” make his defenses plausible and would likely endear him to a jury.
“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,” the report notes. “Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. 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.”
“We also believe some of the same evidence that supports reasonable doubt for the classified Afghanistan documents also supports reasonable doubt for the notebooks, including Mr. Biden’s cooperation with the investigation, his diminished faculties in advancing age, and his sympathetic demeanor,” the special counsel’s report adds. “These factors likely make it difficult for jurors to conclude he had criminal intent.”
The report mentions numerous occasions on which Biden shared sensitive classified information with a ghostwriter, Mark Zwonitzer.
“For these jurors, Mr. Biden’s apparent lapses and failures in February and April 2017 will likely appear consistent with the diminished faculties and faulty memory he showed in Zwonitzer’s interview recordings and in our interview of him,” the report finds. “Therefore, we conclude that the evidence does not establish that Mr. Biden willfully disclosed national defense information to Zwonitzer.”
Hur’s report draws a distinction between Biden’s cooperation and Trump’s alleged obstinacy. Referencing Trump’s June 2023 indictment, the report states: “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 to lie about it.”
Biden released a statement on the report later Thursday, and the president included similar remarks in a speech to House Democrats.
“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,” the president said in the statement released by the White House.
“This was an exhaustive investigation going back more than 40 years, even into the 1970s when I was a young senator,” Biden added. “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 [is] closed,” he said.
On his social media site, Trump decried what he called yet more evidence of “A TWO-TIERED SYSTEM OF JUSTICE AND SELECTIVE PROSECUTION!”
“Biden took the documents in his ‘mental primetime,’” the former president posted on Truth Social. “He shouldn’t be allowed to get away with this, and he wasn’t protected by the Presidential Records Act.”
“I was cooperative with the investigators,” Trump added. “Crooked Joe Biden didn’t – just the opposite, following the usual, corrupt Democrat playbook. He ‘willfully retained’ documents. This is scam justice – deranged Jack Smith and his thugs should immediately drop the totally discredited documents hoax against me.”
After making brief remarks about the special counsel’s report beginning about 8 p.m. that were similar to his earlier comments, Biden held an unusual nighttime press conference at which reporters shouted questions about the special counsel’s findings on the president’s memory and other mental faculties.
A recent NBC News poll found that 76% of respondents said they have “major” (62%) or “moderate” (14%) concerns about Biden’s having the “necessary mental and physical health for a second term.”
The White House did not immediately respond to The Daily Signal’s request for comment on the special counsel’s claims about the president’s “diminished faculties.”
Originally published at The Daily Signal
