Biden Knowingly Kept and Shared Classified Material, Special Counsel Concludes
President won’t face criminal charges after lengthy report finds he was careless in keeping classified documents while out of office
President Biden was sloppy in holding on to classified material related to some of his most consequential policy debates as vice president, eager to show that history would prove him right, according to a special counsel investigation that yielded no criminal charges but is likely to add a new dynamic to the 2024 presidential contest.
Biden willfully retained and disclosed to a ghostwriter classified materials while he was a private citizen after his vice presidency, including documents about military and foreign policy in Afghanistan and notebooks with Biden’s handwritten notes implicating sensitive intelligence sources, according to a report from special counsel Robert Hur, made public Thursday.
“Mr. Biden’s lapses in attention and vigilance demonstrate why former officials should not keep classified information unsecured at home and read them aloud to others,” Hur wrote in the 345-page document.
Biden aides have worried the revelations could embarrass him as he campaigns for re-election against Donald Trump, the likely Republican nominee, who himself faces felony charges related to classified material he kept at his Florida estate.
Hur said in the report that he didn’t think prosecutors could pursue a criminal case against Biden over the classified material, in part because there were some innocent explanations for Biden hanging on to the material that jurors might find convincing. “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 said.
A White House lawyer, Richard Sauber, said he disagreed with “a number of inaccurate and inappropriate comments” in Hur’s report. Another Biden lawyer accused Hur of engaging in investigative excess, and said the report flouted Justice Department regulations in making detailed public allegations when prosecutors aren’t pursuing a criminal case.
“Over my career in public service, I have always worked to protect America’s security. I take these issues seriously and no one has ever questioned that,” Biden said in a statement.
Trump and his supporters have accused the Justice Department of a double standard in treatment. “If you’re too senile to stand trial, then you’re too senile to be president. Joe Biden is unfit to lead this nation,” said Alex Pfeiffer, a spokesman for MAGA Inc., a political committee that supports the former president.
Hur cited several material distinctions between the Trump and Biden cases, including that, according to prosecutors, Trump refused to relinquish all the documents in his possession, lied to investigators and sought to obstruct their repeated efforts to get them back. In contrast, Hur wrote, Biden immediately surrendered his to the National Archives and Justice Department, consented to searches of his homes, sat for an interview in October with investigators and otherwise cooperated.
The Federal Bureau of Investigation obtained a warrant to search Trump’s Mar-a-Lago home in Palm Beach, Fla., in August 2022 after more than a year of negotiations between Trump’s lawyers, the National Archives and later the Justice Department—and after Trump’s lawyers said all documents had been returned. A separate special counsel, Jack Smith, last year charged Trump with improperly withholding classified documents and obstructing justice by allegedly trying to have surveillance footage deleted that revealed how some of the documents were being handled. He has pleaded not guilty.
In his own statement Thursday, Trump said in all caps: “This has now proven to be a two-tiered system of justice and unconstitutional selective prosecution!”
The report in particular chronicles Biden’s apparent memory lapses as a factor investigators mulled. Biden’s conversations with his ghostwriter were “often painfully slow,” the report said, “with Mr. Biden struggling to remember events and straining at times to read and relay his own notebook entries.”
Biden’s memory in his interview with the special counsel’s office was even worse, the report said. He didn’t remember when he was vice president, forgot when his term had ended, or when his son Beau died, it said. Biden also allegedly forgot who his allies had been on Afghanistan policy and mistakenly identified one as an antagonist, the report said. “His memory appeared hazy when describing the Afghanistan debate that was once so important to him,” it added.
In a prime-time press conference hours after the report’s release, Biden expressed indignation over those passages, particularly the reference to his son’s death. “How in the hell dare he raise that?” Biden said of the special counsel. “Frankly when I was asked the question, I thought to myself, it wasn’t any of their damn business.”
Hur’s team cast a wide net in trying to answer questions about how the Biden material was packed and handled and wound up at an office Biden used at the Penn Biden Center for Diplomacy and Global Engagement, a Washington-based think tank, and in the garage of his home in Wilmington, Del., alongside his vintage Corvette.
Hur’s team interviewed more than 147 people as part of the probe and collected more than seven million documents, emails, text messages, videos and photos, some of which are included in the report. Attorney General Merrick Garland tapped Hur, a former Trump-appointed U.S. attorney in Maryland, in January 2023 and promised to make the findings public. He received the finished report on Monday evening and submitted it to Congress on Thursday.
Biden’s private lawyer and the White House Counsel’s Office were allowed to review a draft of the report over the weekend, a Justice Department official said.
Hur traced some of the documents to Biden’s opposition to sending more troops to Afghanistan during the Obama administration.
As vice president, Biden had advised Obama that Afghanistan was a quagmire and that the military would try to narrow his options. In 2021, Biden ordered U.S. troops to pull out of the country, a chaotic exit that marked a tumultuous ending to the 20-year war and has left a blemish on Biden’s presidency.
After leaving the vice presidency in 2017, Biden retained materials documenting his opposition to a 2009 troop surge, including a classified memo he sent Obama over the Thanksgiving holiday that year, Hur said.
The materials were among those in Biden’s Delaware garage and home office, and were recovered by FBI agents.
In a February 2017 conversation recorded with a ghostwriter of one of his memoirs, Biden said he had “just found all the classified stuff downstairs,” according to the report. At the time he was renting a home in Virginia, and Biden had stored his papers downstairs from his office, where he was meeting the writer, the report said. But the documents aren’t referenced in his book and didn’t come up again in additional conversations with the writer, the report said. Those factors are among others that would likely convince some jurors it was an innocent mistake, Hur said.
“The place where the Afghanistan documents were eventually found in Mr. Biden’s Delaware garage—in a badly damaged box surrounded by household detritus—suggests the documents might have been forgotten,” the report said. Among the collection of other forgotten items were a collapsed dog crate, a broken lamp, potting soil and synthetic firewood.
Biden also often took notes as vice president in National Security Council meetings and other briefings, and shared some information from those notebooks with the writer, Mark Zwonitzer, including reading aloud from classified entries at least three times, Hur said. Biden told the special counsel team that he viewed the notebooks as his personal property, citing diaries that former President Ronald Reagan kept, the report said.
Prosecutors also examined Zwonitzer in their investigation. The ghostwriter deleted the audio recordings upon learning of the special counsel’s appointment, but told the special counsel’s office what he had done, the report said. He turned over transcripts of the records, and the FBI was able to recover the deleted files, it said.
Zwonitzer, Biden’s ghostwriter for his November 2017 book, “Promise Me, Dad: A Year of Hope, Hardship, and Purpose,” didn’t respond to requests for comment. He told investigators he knew of the special counsel investigation when he deleted the recordings, no one told him to do so, and he didn’t think they contained relevant information.