A special counsel concluded on Thursday that Joe Biden should not face criminal charges for retaining classified documents, but painted a damaging portrait of the US president as a “well-meaning, elderly man with a poor memory”.
The report removed a legal cloud hanging over Biden, 81, as he seeks re-election in a contest expected to be against Donald Trump – who is facing a criminal trial for removing large amounts of secret documents after he lost the White House, then refusing to cooperate with investigators.
However, in a shock for the Biden campaign, Special Counsel Robert Hur said his investigation had found a president with such reduced mental capacities that he could not remember the dates even of his vice-presidency under Barack Obama and the death of his son Beau to cancer in 2015.
A Trump spokeswoman, Karoline Leavitt, reacted by posting on X: “How are we supposed to trust his ability to lead our country if his memory has ‘significant limitations’ ?!?!”
Republican House Speaker Mike Johnson, a close Trump ally, said: “A man too incapable of being held accountable for mishandling classified information is certainly unfit for the Oval Office.”
The White House said on Thursday it was “pleased” by the decision not to file charges against Biden. However, it added that “we disagree with a number of inaccurate and inappropriate comments in the special counsel’s report”.
Hur was appointed by Biden’s attorney general, Merrick Garland, last year after classified material was found at Biden’s home in Wilmington, Delaware, and in a former office.
The 388-page report said Biden had “wilfully retained and disclosed classified materials” in the period after he left the vice presidency – well before he defeated Trump in 2020 to become US president.
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Hur – previously nominated by Trump to be the lead prosecutor for the state of Maryland – said documents about military and foreign policy in Afghanistan and other matters were recovered by Federal Bureau of Investigation (FBI) agents.
However, Hur said: “We conclude the evidence is not sufficient to convict, and we decline to recommend prosecution of Mr Biden for his retention of the classified Afghanistan documents.”
Hur then said he did not think a jury would want to convict Biden, who came across to investigators 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 eighties – of a serious felony that requires a mental state of wilfulness,” the special counsel said.
Hur noted clear differences in the Biden and Trump classified documents scandals – in particular that “after being given multiple chances to return classified documents and avoid prosecution, Mr Trump allegedly did the opposite”.
“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.
“In contrast, Mr Biden turned in classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations including his homes, sat for a voluntary interview. and in other ways cooperated with the investigation.”
Trump, 77, pleaded not guilty in June to multiple charges of unlawfully retaining national defence information, conspiracy to obstruct justice and making false statements.
He is expected to go on trial in Florida in May.
Additional reporting by Reuters