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Though the best case for charges could involve his possession of the Afghanistan documents as a private citizen, prosecutors said, it was possible that 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,” the report.
The report said there was some evidence to suggest that Biden knew he could not keep classified handwritten notes at home after leaving office, citing his deep familiarity “with the measures taken to safeguard classified information and the need for those measures to prevent harm to national security.” 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.”
While the report removes legal jeopardy for the president, it is nonetheless is an embarrassment for Biden, who placed competency and experience at the core of his rationale to voters to send him to the Oval Office.
“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. “And 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, 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.
“Given Mr. Biden’s limited precision and recall during his interviews with his ghostwriter and with our office, jurors may hesitate to place too much evidentiary weight on a single eight-word utterance to his ghostwriter about finding classified documents in Virginia, in the absence of other, more direct evidence.”
“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,” investigators wrote.
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, Biden could have plausibly believed that the notebooks were his personal property and belonged to him, even if they contained classified information.
In an interview with prosecutors, the report said, Biden was emphatic with investigators that the notebooks were “my property” and that “every president before me has done the exact same thing.”
White House lawyers and Biden’s personal attorney were given the opportunity to review and comment on the report. Biden chose not to assert executive privilege over any portion of the report, White House counsel’s office spokesman Ian Sams said.
Attorney General Merrick Garland in January 2023 named Hur, a former U.S. attorney for Maryland, to handle the politically sensitive Justice Department inquiry in an attempt to avoid conflicts of interest. It is one of three recent Justice Department investigations into the handling of classified documents by politically prominent figures.