Biden Too Old To Be Convicted Over Mishandling of Classified Docs, Special Counsel Says

(Drew Angerer/Getty Images)
February 8, 2024

President Joe Biden's old age is a barrier to securing a conviction against him over the mishandling of classified documents, the special counsel overseeing the case said in his report released Thursday.

Although investigators found "evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen," Special Counsel Robert Hur said it would be difficult to convince a jury of Biden's guilt, largely because of his poor memory at his age. Hur determined in the report that charges are not warranted against Biden in the case.

"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," Hur wrote. "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."

The report also said Biden had difficulty remembering when he was vice president during his interview with investigators, apparently forgetting when his term began and ended.

The strongest evidence against Biden, according to Hur, was a February 2017 conversation between him and a ghostwriter working on his memoir, in which Biden told the writer that he had "just found all the classified stuff downstairs."

White House counsel Richard Sauber and Biden's personal lawyer Bob Bauer both slammed the inclusion of details about the president's memory.

"We do not believe that the report's treatment of President Biden's memory is accurate or appropriate. The report uses highly prejudicial language to describe a commonplace occurrence among witnesses: a lack of recall of years-old events," the duo wrote in a letter attached at the end of the report.

"We disagree with a number of inaccurate and inappropriate comments in the special counsel’s report," Sauber wrote in a separate statement. "Nonetheless, the most important decision the Special Counsel made—that no charges are warranted—is firmly based on the facts and evidence."

Biden's likely opponent in the November election, former president Donald Trump, faces a 40-count federal indictment for retaining highly sensitive national security documents at his Florida resort after leaving office in 2021 and obstructing U.S. government efforts to retrieve them.

While the two cases have similarities, there are also some notable differences.

The White House said Biden's attorneys found a small number of classified documents and turned them over after discovery.

Trump resisted doing so until a 2022 FBI search turned up about 100 classified documents, leading to obstruction of justice charges against Trump and two employees at his Mar-a-Lago resort.

Hur, who served in senior roles at the Justice Department during the Trump administration, was appointed in January 2023 to oversee the investigation into Biden.

Attorney General Merrick Garland, who was nominated by Biden, put Hur in charge of the investigation to give the probe a degree of independence from the leadership of the Justice Department.

Hur’s investigators interviewed Biden in October as part of his probe. The White House has said Biden and his team have cooperated with the investigation.

Biden cannot face federal criminal charges as a sitting president under a longstanding Justice Department policy.

The findings could pose political headaches for Biden who has sought to draw a contrast with Trump on issues of personal ethics and national security.

Hur’s report, and his decision not to bring criminal charges, are likely to fuel accusations of a double standard from Trump and his Republican allies.

Trump was charged after prosecutors said he refused for months to turn over boxes containing presidential records he had taken to his Mar-a-Lago resort and took steps to conceal the documents after the U.S. government demanded their return. An FBI search in August 2022 turned up more than 100 classified documents on the property, prosecutors alleged.

Trump has pleaded not guilty and accused prosecutors of political motivations. A trial is scheduled for May but is likely to be delayed.

Biden’s lawyers have said they notified the National Archives after finding a "small number" of classified documents in his office at the Penn Biden Center for Diplomacy and Global Engagement in November 2022, prompting a federal investigation. Additional documents were later found in a garage and library at Biden’s Delaware home and turned over to the Justice Department.

Biden faced criticism at the time for delays in notifying the public about the discoveries.

The details about Biden's memory could also contribute to voters' lack of confidence in his ability to do his job, given his age. In an August 2023 Associated Press poll, 77 percent of respondents said they did not believe Biden could "effectively serve" another term, and 73 percent in a Wall Street Journal poll believed he was too old to run for president. This week, on multiple occasions, Biden mistakenly recounted details of a 2021 meeting with European leaders, saying he had spoken to people there who had died years prior to when it took place.