Biden will not be charged over top secret documents

February 6, 2024  –US President Joe Biden “wilfully retained and disclosed classified materials”, a special counsel has found, but he will not be charged.

The report says it would be difficult to convict him as he comes across as an “elderly man with a poor memory”.

The investigation began more than a year ago after secret documents were found at Mr Biden’s home and former private office.

The files were returned to US officials once discovered.

The special counsel’s report revealed for the first time that the documents were classified as Top Secret – the highest level of secrecy, and were regarding military and foreign policy in Afghanistan.

The files recovered also included notebooks containing Mr Biden’s entries about national security and foreign policy matters “implicating sensitive intelligence sources and methods”.

“We conclude that the evidence does not establish Mr Biden’s guilt beyond a reasonable doubt,” says the report by justice department Special Counsel Robert Hur.

“Prosecution of Mr Biden is also unwarranted based on our consideration of the aggravating and mitigating factors.”

Mr Hur’s 345-page report was released publicly on Thursday after the White House said it would not request any redactions.

Investigators conducted 173 interviews with 147 witnesses, including President Biden himself.

The special counsel’s report says that it would be difficult to convict the president of improper handling of files because “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”.

“It would be difficult to convince a jury that they should convict him – by then a former president well into his 80s of a serious felony that requires a mental state of willfulness.”

Mr Hur’s report said Mr Biden’s memory seemed to have “significant limitations”. He could not recall when he was vice-president (from 2009-2017), or “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.”

For the oldest president in American history, being characterised as an “elderly man with a poor memory” will be seen as politically unhelpful as he seeks another four years in office.

His Republican critics picked up on this line in the report.

“They’re admitting what we all see every day,” the House of Representatives judiciary committee posted on X (formerly Twitter).

The report includes photos of documents in Mr Biden’s cluttered garage

The report went on say that Mr Biden’s actions “present[ed] serious risks to national security, given the vulnerability of extraordinarily sensitive information to loss or compromise to America’s adversaries”.

“But addressing those risks when pursuing criminal charges, the only means available to this office, is not the proper remedy here.”

In a statement from the White House, Mr Biden said: “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.”

He said that he sat for a total of five hours of interviews on 8-9 October “even though Israel had just been attacked on October 7th and I was in the middle of handling an international crisis”.

The presidential campaign of Donald Trump, who faces trial this year over alleged mishandling of secret files, released a statement saying: “If you’re too senile to stand trial, then you’re too senile to be president. Joe Biden is unfit to lead this nation.”

The Hur report says Mr Biden had “a strong motive” to retain some of the classified files because he wanted to prove that President Barack Obama, whom he served under as vice-president, was wrong to send additional troops to Afghanistan.

He wanted to show that Mr Obama’s 2009 troop deployment “was a mistake on par with Vietnam.”

“He wanted record to show that he was right about Afghanistan; that his critics were wrong; and that he had opposed President Obama’s mistaken decision forcefully when it was made – that his judgment was sound when it mattered most.”

Watch: How much do you know about classified documents?

Mr Hur was appointed by US Attorney General Merrick Garland in early 2023 to lead the investigation and after a separate investigation was launched into secret documents found at Mr Trump’s Florida home.

In June, Mr Trump was charged with seven counts over his handling of classified documents after he left the White House, including mishandling classified files and obstructing efforts to investigate the storage of the material at his Florida home.

He has denied any wrongdoing and repeatedly claimed it was his right to keep the documents. His trial is set to begin in Miami in May.

In Mr Biden’s case, documents were first discovered by his aides in an office he used after departing the vice-presidency in 2017 and before he launched his 2020 bid for the White House.

The first batch of classified documents was found on 2 November 2022 at the Penn Biden Center, a think tank he founded in Washington DC.

A second batch of records was found on 20 December 2022 in the garage of his Wilmington, Delaware, home, while another document was found in a storage space at the house on 12 January 2023, his lawyers said at the time.

After finding the files, the president said his team turned them over to the National Archives and the Department of Justice.

Mr Trump is charged with seeking to hide the records, even after the federal government requested their return.

DOJ Mr Biden's notebooks were also recovered from his Delaware home officeDOJ
Mr Biden’s notebooks were also recovered from his Delaware home office

Under the Presidential Records Act, White House records once an administration ends are supposed to go to the National Archives, where they can be stored securely.

Other high-ranking US officials, such as former Vice-President Mike Pence and former Secretary of State Hillary Clinton, have also been accused of mishandling sensitive material.

Documents were found unsecured in Mr Pence’s Indiana home in January of last year, and Mrs Clinton was criticised during her presidential campaign for using a personal email address while working as secretary of state on an unsecured home server.

In the Clinton case, FBI Director James Comey decided after an investigation that she had been careless in using a private server but that this did not warrant charges.

Mr Pence maintained the documents had ended up at his home “inadvertently” but he had taken full responsibility for the mistake.

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