Joe Biden 'wilfully' disclosed classified materials, but won't face criminal charges

President Biden was described as a "well-meaning elderly man with a poor memory" in a Justice Department report. ITV News Washington Correspondent Robert Moore analyses the political consequences

Joe Biden "willfully" held on to highly classified documents at his home and in his garage from his time as a senator and Vice President.

Among the documents were details on military and foreign policy in Afghanistan and other sensitive national security matters.

Special counsel Robert Hur's report described the President as an "elderly man with a poor memory".

The findings will likely harm his ability to condemn his likely presidential election opponent Donald Trump over a criminal indictment charging him with illegally hoarding classified records at his Mar-a-Lago estate in Florida. "Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen," Mr Hur wrote.

"Mr Biden was known to remove and keep classified material from his briefing books for future use, and his staff struggled — and sometimes failed — to retrieve those materials,” the report states.

"There was no procedure at all for tracking some of the classified material Mr Biden received outside of his briefing books."

In declining to prosecute Biden, Mr Hur’s office also cited what it said was Biden’s "limited memory" both during his 2017 recorded conversations with the ghostwriter and in an interview with investigators last year.

Examples of lapses in memory range from the dates that he was Vice President, to the date that his son Beau died in 2015.

The report follows a yearlong 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, as well as at a private office that he used in between his service in the Obama administration and becoming president.

The investigation into President Biden is separate from special counsel Jack Smith’s inquiry into the handling of classified documents by Trump after Trump left the White House.

Mr Smith’s team has charged Trump with illegally retaining top secret records at Mar-a-Lago home and then obstructing government efforts to get them back. Trump has denied wrongdoing.

After Mr Biden's lawyers uncovered classified documents at his former office, his representatives promptly contacted the 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.

Mr Biden could not have been prosecuted as a sitting president, but Mr Hur’s report states that he would not recommend charges against him 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 centers 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.

Mr 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 have classification markings up to the Top Secret/Sensitive Compartmented Information Level and 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 stored in his garage, apparently in a loose collection with other household items, including a ladder and a wicker basket.

Classified documents from the Obama administration were also found in Biden’s basement den, according to the report. Classified documents from his time in the Senate in the 1970s and 1980s were also found in his garage.

The report cites multiple reasons for not recommending prosecution, including the fact that as vice president, and during his subsequent presidency, Mr Biden "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 that he had “just found all the classified stuff downstairs.”

Mr 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 Mr Biden’s comment was a reference to the same classified records that FBI agents later found in his Delaware home.Though the best case for charges could involve his possession of the Afghanistan documents as a private citizen, prosecutors said, it was possible that Mr Biden could have found those records at his Virginia home in 2017 and then forgotten about them soon after.“This could convince some reasonable jurors that he did not retain them willfully,” said the report.

It added that there was some evidence to suggest that Mr Biden knew he could not keep classified handwritten notes at home after leaving office. Yet his kept notebooks containing classified information in unlocked drawers at home.

“He had strong motivations to do so and to ignore the rules for properly handing the classified information in his notebooks,” the report said.

“He consulted the notebooks liberally during hours of discussions with his ghostwriter and viewed them as highly private and valued possessions with which he was unwilling to part.”

There is recent Justice Department precedence for criminal charges against individuals accused of sharing classified information with biographers or ghostwriters; Gen. David Petraeus pleaded guilty to doing exactly that in 2015 and was sentenced to probation.

Yet in this instance, prosecutors say, Mr Biden could have plausibly believed that the notebooks were his personal property and belonged to him, even if they contained classified information.

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