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Biden’s Claims About Special Counsel Report on Classified Documents Investigation

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Special Counsel Robert Hur’s report on his investigation of President Joe Biden’s handling of classified documents concluded that “no criminal charges are warranted in this matter.” But in a press conference, Biden made several false or misleading claims concerning other details in that report.

“Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen,” including “marked classified documents” about Afghanistan and handwritten notebooks Biden had kept, Hur’s report says. However, for several reasons Hur outlines, “we conclude that the evidence does not establish Mr. Biden’s guilt beyond a reasonable doubt.”

The report was released on Feb. 8, and Biden held a press conference that night.

  • Biden said the special counsel found “‘a shortage of evidence’ that I willfully retained classified materials,” calling news reports “about my willful retention of documents … just plain wrong.” The special counsel said the investigation “uncovered evidence [that] Biden willfully retained and disclosed classified materials,” but not enough evidence to convince a jury.
  • He falsely said none of the documents found in his possession was highly classified.
  • Biden claimed the special counsel “did not say” that Biden had shared secret information with the ghostwriter of his book. The report did say that.
  • Biden wrongly claimed that “all the stuff that was in my home was in filing cabinets that were either locked or able to be locked.” Some material was in unlocked drawers and in a box in the garage, the report says.
  • The president condemned claims in the report about his “diminished faculties and faulty memory,” saying they had “no place in this report.” Hur said he included it as part of his argument that it would be hard to convince a jury that Biden had acted “willfully” to break the law.

Biden, however, was correct when he touted “the stark distinction and difference” the report made between his case and former President Donald Trump’s classified documents case. Hur cited “several material distinctions,” including Trump’s refusal to return documents and his alleged attempts to get others to destroy evidence. Trump, meanwhile, ignored the differences cited in the report, reposting several messages on social media claiming there was a “double standard.”

Willful Retention of Classified Documents

In 2016 and 2017, Mark Zwonitzer — the ghostwriter of two Biden books — taped interviews with Biden at Biden’s rental home in Virginia. In a 2017 interview, the former vice president told Zwonitzer that he had “just found all the classified stuff downstairs,” the special counsel’s report said.

“From context, Mr. Biden appears to have been referring to classified documents relating to American military and foreign policy in Afghanistan,” the report said of Biden’s mention of classified documents in that 2017 interview. “When he made his statement to Zwonitzer, Mr. Biden was discussing a handwritten memo he had sent to President Obama opposing the deployment of more troops to Afghanistan in 2009.”

Those documents were later recovered by FBI agents in late 2022 and early 2023, the report said.

Biden answers questions after speaking about the special counsel report in the Diplomatic Reception Room of the White House on Feb. 8. Photo by Mandel Ngan/AFP via Getty Images.

“He kept documents related to the debated troop surge, including a classified handwritten memo he sent President Obama in 2009 opposing the surge and marked classified documents supporting his position,” the report said. “In December 2022 and January 2023, FBI agents recovered these materials from Mr. Biden’s Delaware garage and office.”

During the taped interviews, Biden also read to Zwonitzer from sections of notebooks that he used during White House meetings.

“Evidence shows that he knew the notebooks contained classified information,” the report said. “Mr. Biden wrote down obviously sensitive information discussed during intelligence briefings with President Obama and meetings in the White House Situation Room about matters of national security and military and foreign policy.”

The notebooks were found in Biden’s office at his home in Delaware in January 2023, approximately one month after investigators discovered classified documents about Afghanistan in Biden’s garage, the report said. Biden told investigators that he considered the books his personal property. “I guess I wanted to hang onto it for posterity’s sake,” the report quotes Biden as saying.

For these reasons, the special counsel report said investigators “uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen,” including classified documents related to Afghanistan.

Biden, however, pushed back on news reports that he “willfully retained” classified documents.

“I’ve seen the headlines since the report was released about my willful retention of documents,” Biden said at his press conference. “These assertions are not only misleading, they’re just plain wrong. … On page 215, the report of the special counsel found the exact opposite. Here’s what he wrote: ‘There is, in fact, a shortage of evidence’ that I willfully retained classified materials related to Afghanistan.'”

Biden has a point about the Afghanistan materials, but there’s more to the story. In other sections, such as on page 204, the report says: “The evidence falls short of establishing Mr. Biden’s willful retention of the classified Afghanistan documents beyond a reasonable doubt.” (Emphasis is ours.)

The special counsel’s report listed “several defenses” that Biden might be able to use that would make it difficult for the government to prove intent – which is required to prove the president willfully retained classified documents. 

The reasons included:

Biden’s memory. The report said his “memory was significantly limited, both during his recorded interviews with the ghostwriter in 2017, and in his interviews with our office in 2023.” The report says “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.”

Biden’s cooperation with investigators. “His cooperation with our investigation, including by reporting to the government that the Afghanistan documents were in his Delaware garage, will likely convince some jurors that he made an innocent mistake,” the report said.

A lack of corroborating evidence. “Another viable defense is that Mr. Biden might not have retained the classified Afghanistan documents in his Virginia home at all,” the report said. Zwonitzer’s tape recording of Biden was the only evidence the special counsel had to prove willful retention. “We searched for such additional evidence and found it wanting. In particular, no witness, photo, e­mail, text message, or any other evidence conclusively places the Afghanistan documents at the Virginia home in 2017.”

Biden’s belief that his notebooks were personal property. When interviewed by federal investigators, Biden said that “[l]ike presidents and vice presidents before me, I understand these notes to be my personal property,” citing former President Ronald Reagan, who kept diaries. That would make it difficult for prosecutors to prove that Biden “acted with intent to do something the law forbids.”

So, Hur had evidence that Biden willfully retained classified material, but the special counsel didn’t believe it was strong enough to convince a jury to convict Biden.

Biden Had ‘Top Secret’ Documents

Biden said none of the documents found in his possession was highly classified, which is false.

“None of it was high classified,” he told the press. “Didn’t have any of that red stuff on it, you know what I mean, around the corners.”

The special counsel’s report doesn’t appear to mention specific colors, but some of the documents found did have classification markings.

For example, the classified documents from 2009, including multiple memos pertaining to U.S. policy in Afghanistan, were discovered in a damaged box in the garage of Biden’s Delaware home. The report says some of the memos to Obama were written by Biden, as well as the national security adviser, who at the time was retired Gen. James Jones.

“These documents from fall 2009 have classification markings up to the Top Secret/Sensitive Compartmented Information level,” according to the report.

On its website, the National Archives explains that information marked as “TOP SECRET,” if released, would cause “exceptionally grave damage to the national security.”

Also, the notebooks found at Biden’s residence, with handwritten notes Biden took during security meetings and briefings, which were later determined to contain classified information.

“Though none of the notebooks have classification markings, some of the notebooks contain information that remains classified up to the Top Secret/Sensitive Compartmented Information level,” the report says.

Investigators reviewed 37 excerpts, or 109 pages, of handwritten materials, and eight were determined to be “Top Secret with Sensitive Compartmented Information,” including seven with “information concerning human intelligence sources.” In addition, six are “Top Secret,” 21 “Secret” and two “confidential.”

Biden’s Ghostwriter Discussions

Biden also falsely claimed that he “did not share classified information” with Zwonitzer, the ghostwriter of his 2017 book, “Promise Me, Dad: A Year of Hope, Hardship, and Purpose.” “Guarantee you, I did not,” Biden said.

When a reporter challenged his statement, pointing out what the report says on the topic, Biden said the special counsel “did not say” that Biden had shared secret information. But Biden is wrong.

Early on, the report says this: “To our knowledge, no one has identified any classified information published in Promise Me, Dad, but Mr. Biden shared information, including some classified information, from those notebooks with his ghostwriter. FBI agents recovered the notebooks from the office and basement den in Mr. Biden’s Delaware home in January 2023.”

And according to the report, “evidence shows” Biden “knew the notebooks,” although the contents were not marked as such, “contained classified information,” including details about national security from intelligence briefings and meetings he attended in the White House Situation Room.

The report also adds that “at least three times Mr. Biden read from classified entries [in his notebooks] aloud to his ghostwriter nearly verbatim,” although he “sometimes skipped over presumptively classified material and warned his ghostwriter the entries might be classified.”

On one occasion, in a February 2017 meeting with Zwonitzer at Biden’s rental home in Virginia, the report says Biden read from notes he took during a 2015 meeting in the Situation Room. The notes “summarized the actions and views of U.S. military leaders and the CIA Director relating to a foreign country and a foreign terrorist organization.”

Material Wasn’t All ‘Locked or Able to be Locked’

Biden falsely claimed that “all the stuff that was in my home was in filing cabinets that were either locked or able to be locked.”

The president made this claim after acknowledging that some material was found in boxes in his garage. “I didn’t know how half the boxes got in my garage until I found out staff gathered them up, put them together, and took them to the garage in my home,” Biden said.

As we’ve explained, the special counsel’s report says marked classified material regarding Afghanistan was found in 2022 in the garage of Biden’s Delaware home “in a badly damaged box surrounded by household detritus.” The report says that the way the materials were kept “suggests the documents might have been forgotten.”

As president, Biden is allowed to keep classified material in his home. Hur explains that it was possible Biden had previously kept the Afghanistan documents in his home in Virginia in February 2017, when Biden was a private citizen, but Hur wasn’t able to establish that for certain. It’s also possible that the documents “could have been stored, by mistake and without his knowledge, at his Delaware home since the time he was vice president, as were other classified documents recovered during our investigation,” the report says.

There were other classified materials that perhaps were “able to be locked” but were not in “filing cabinets,” as Biden said, but rather, were stored in unlocked drawers.

The special counsel’s report says the notebooks that contained classified information were in “unlocked drawers in the office and basement den” of Biden’s Delaware home. Biden had used the notebooks when he was vice president.

In a Feb. 9 White House press briefing, when asked about Biden’s comment about classified material being locked in his house, Ian Sams, spokesperson for the White House counsel’s office, called the notebooks Biden’s “personal diaries” and said “the documents that were taken were jumbled up in boxes and found inadvertently in places.”

Biden’s Memory

Biden condemned what he called “extraneous commentary” in the report about his memory. “They don’t know what they’re talking about,” Biden said. “It has no place in this report. … My memory is fine.”

The report’s numerous mentions of Biden’s recall — described at one point as “diminished faculties and faulty memory” — were included, Hur wrote, because it factored heavily into his decision about whether he could convince a jury that Biden had acted “willfully” to break the law.

Explaining his conclusion that “the evidence is not sufficient to convict” Biden, Hur 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. 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.”

According to the special counsel’s report, Biden’s memory was “significantly limited” in recorded interviews with Zwonitzer, the ghostwriter of his 2017 memoir, as well as in interviews with federal investigators in 2023.

The report said Biden’s recorded conversations with Zwonitzer “are often painfully slow, with Mr. Biden struggling to remember events and straining at times to read and relay his own notebook entries.”

“In his interview with our office, Mr. Biden’s memory was worse,” the report states. “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?’). 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. Among other things, he mistakenly said he ‘had a real difference’ of opinion with General Karl Eikenberry, when, in fact, Eikenberry was an ally whom Mr. Biden cited approvingly in his Thanksgiving memo to President Obama.”

“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,” wrote Hur, who in 2017 was nominated by Trump to be the U.S. attorney for Maryland.

That limitation of memory, Hur wrote, “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.”

In his comments about the report on Feb. 8, Biden noted, “I went forward with a five-hour in-person … interview over two days on October the 8th and 9th of last year, even though Israel had just been attacked by Hamas on the 7th and I was very occupied. It was in the middle of handling an international crisis.”

Biden also took umbrage at the report claiming he did not remember when his son died.

“How in the hell dare he raise that,” Biden said. “Frankly, when I was asked the question, I thought to myself it wasn’t any of their damn business. … I don’t need anyone to remind me when he passed away or if he passed away.”

In a Feb. 5 letter responding to the report, and included at the bottom of the special counsel’s report, Biden lawyers Richard Sauber and Bob Bauer described the report’s comments about Biden’s memory as inaccurate and inappropriate.

“The report uses highly prejudicial language to describe a commonplace occurrence among witnesses: a lack of recall of years-old events,” Sauber and Bauer wrote. “Such comments have no place in a Department of Justice report, particularly one that in the first paragraph announces that no criminal charges are ‘warranted’ and that ‘the evidence does not establish Mr. Biden’s guilt.’ If the evidence does not establish guilt, then discussing the jury impact of President Biden’s hypothetical testimony at a trial that will never occur is entirely superfluous.”

The two lawyers also claimed there was “ample evidence” Biden “did well in answering your questions about years-old events over the course of five hours,” especially given that Biden was in the midst of handling an international crisis. They said the transcript shows Biden provided “detailed recollections across a wide range of questions” and, they said, Biden’s “inability to recall dates or details of events that happened years ago is neither surprising nor unusual.”

The lawyers described Hur’s language as “pejorative,” “highly prejudicial,” “inflammatory,” “gratuitous” and “not supported by the facts.”

“My memory is fine,” Biden said at the press conference. “My memory — take a look at what I’ve done since I’ve become president. None of you thought I could pass any of the things I got passed. How did that happen? You know, I guess I just forgot what was going on.”

‘Material Differences’ Between Biden and Trump

Biden said he was “especially pleased to see special counsel make clear the stark distinction and difference between this case and Mr. Trump’s case.” Meanwhile, on Truth Social, Trump reposted several messages claiming the report revealed a “double standard” or “two-tiered justice” when it comes to prosecuting the former president for retaining classified documents, and arguing that the case against Trump should be dropped.

We’ve written before about Trump’s misleading claims about a double standard regarding his classified documents case compared with other presidents, including Biden. In his special counsel report, Hur pointed to “several material distinctions” between the cases involving Trump and Biden.

“With one exception, there is no record of the Department of Justice prosecuting a former president or vice president for mishandling classified documents from his own administration,” Hur wrote. “The exception is former President Trump. It is not our role to assess the criminal charges pending against Mr. Trump, but several material distinctions between Mr. Trump’s case and Mr. Biden’s are clear. Unlike the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts.

“Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite,” Hur wrote. “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.”

In a timeline of the FBI’s investigation of Trump’s handling of highly classified documents, we detailed the numerous steps the National Archives and Records Administration and the Department of Justice took in an effort to retrieve government records from Trump after he left office.

The National Archives first asked Trump for missing presidential records on May 6, 2021, and continued asking for months, before getting 15 boxes of records on Jan. 18, 2022, according to the Department of Justice’s affidavit. When NARA then discovered classified documents among those records, it notified the DOJ.

On May 11, 2022, Trump’s office received a grand jury subpoena seeking additional classified documents. In response, Trump’s lawyers the following month handed over an envelope with 38 classified documents.

But that still wasn’t all of the classified documents Trump had in his possession. And the indictment describes how Trump had directed his aide, Walt Nauta, “to move boxes of documents to conceal them from Trump’s attorney, the FBI, and the grand jury.”

In August 2022, the FBI obtained a court-approved search warrant  and retrieved “over one hundred unique documents with classification markings” including many that were highly classified or top secret, according to a court filing.

Trump was initially charged with 37 felony counts, including 31 counts of “willful retention of national defense information,” and additional counts of “conspiracy to obstruct justice,” “withholding a document or record,” “corruptly concealing a document or record,” and “concealing a document in a federal investigation.” He has pleaded not guilty to all the charges.

A superseding indictment filed in July 2023 added some new charges against Trump. Specifically, the indictment says Trump, along with two employees, tried to get another Trump employee to “delete security camera footage at The Mar-a-Lago Club to prevent the footage from being provided to a federal grand jury.” The revised indictment added charges against Trump of attempting to destroy evidence in an official proceeding and corruptly attempting to do so.

Update, March 15: Transcripts of Biden’s interviews with Hur and other investigators were released March 12. The transcript of the Oct. 8, 2023, interview shows that Hur and Hur’s team had not “asked the question” about the date of Beau Biden’s death, as the president claimed. Biden — not the investigators — brought up the date of his son’s death in 2015 from brain cancer when he was answering Hur’s question about where he stored papers related to his post-vice presidency work projects. (See “Transcript of Joe Biden’s Interview with Hur Reveals How the Date of Beau Biden’s Death Came Up.”)

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