U.S. President Joe Biden “willfully” retained and disclosed highly classified materials when he was a private citizen, including documents about military and foreign policy in Afghanistan and other sensitive national security matters, according to a U.S. Justice Department report that nonetheless says no criminal charges are warranted for him or anyone else.
The report from special counsel Robert Hur, released on Thursday, represents a harshly critical assessment of the Democratic president’s handling of sensitive government materials, but it also details the reasons why he should not be charged with a crime.
The findings will likely blunt his ability to forcefully condemn Donald Trump, Biden’s likely Republican opponent in November’s presidential election, over a criminal indictment charging the former president with illegally hoarding classified records at his Florida estate.
“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.
His report says evidence suggests that many of the classified documents recovered by investigators at the Penn Biden Center, in parts of Biden’s Delaware home and in his Senate papers at the University of Delaware were retained by “mistake.”
In a statement, Biden said he was “pleased” that the special counsel “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 made a point of saying that he sat for five hours of in-person interviews over two days on Oct. 8 and 9, “even though Israel had just been attacked … 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 closed,” Biden said.
The report came after a year-long investigation into the improper retention of classified documents by Biden, from his time as a senator and as vice-president, that were found at his Delaware home and at a private office that he used after his service in the Obama administration.
Separate from Trump probe
The Biden probe is separate from special counsel Jack Smith’s inquiry into the handling of classified documents by Trump after Trump left the White House. Smith’s team has charged Trump with illegally retaining top-secret records at his Florida home and then obstructing government efforts to get them back. Trump has said he did nothing wrong.
After Biden’s lawyers uncovered classified documents at his former office, Biden’s representatives promptly contacted the U.S. National Archives to arrange their return to the government. The National Archives notified the FBI, which opened an investigation.
Biden made his homes available to agents to conduct thorough searches, and that is how the most sensitive documents came to the attention of the Justice Department.
He could not have been prosecuted as a sitting president, but Hur’s report states that he would not recommend charges against Biden regardless.
“We would reach the same conclusion even if Department of Justice policy did not foreclose criminal charges against a sitting president,” the report said.
Part of the report centres on Biden’s handling of classified documents about Afghanistan — specifically, the Obama administration’s decision to send additional troops there — that he retained after he left office as vice-president in his Delaware home.
Biden preserved materials documenting his opposition to the troop surge, including a 2009 classified handwritten memo to then-president Barack Obama.
“These materials were proof of the stand Mr. Biden took in what he regarded as among the most important decisions of his vice-presidency,” the report said.
The documents, which have classification markings up to the Top Secret/Sensitive Compartmented Information Level, were found in a box in Biden’s Delaware garage “that contained other materials of great significance to him and that he appears to have personally used and accessed.”
Photographs included in the report showed some of the classified Afghanistan documents stored in a worn cardboard box in his garage, apparently in a loose collection with other household items, including a ladder and a wicker basket.
Documents found in basement, garage
Classified documents from the Obama administration were found in Biden’s basement den, according to the report, and classified documents from his time in the Senate in the 1970s and 1980s were also found in his garage.
Despite signs that Biden knowingly retained and disclosed classified materials, Hur’s report said criminal charges were not merited for multiple reasons. Those include the fact that as vice-president and during his subsequent presidency when the Afghanistan records were found, “he had the authority to keep classified documents at his home.”
As part of the probe, investigators reviewed a recording of a February 2017 conversation between Biden and his ghostwriter in which, referring to the 2009 memo to Obama, Biden said he had “just found all the classified stuff downstairs.” Biden was renting a home in Virginia at the time and consolidated his belongings in Delaware when he moved out in 2019.
Prosecutors believe that Biden’s comment was a reference to the same classified records that FBI agents later found in his Delaware home.
Although the best case for charges could involve his possession of the Afghanistan documents as a private citizen, prosecutors said, it was possible Biden could have found those records at his Virginia home in 2017 and forgotten about them afterward.
“This could convince some reasonable jurors that he did not retain them willfully,” the report said.
While the report removes legal jeopardy for the president, it is nonetheless an embarrassment for Biden, who placed competency and experience at the core of his rationale to voters to send him to the Oval Office.