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Special counsel report concludes Biden willfully retained classified information but will not face charges

Special counsel Robert Hur released a searing report Thursday that concluded President Joe Biden willfully retained and disclosed classified military and national security information but recommended he not face charges after a yearlong investigation into his handling of classified documents.

“We concluded that no criminal charges are warranted in this matter,” Hur determined in the report, which marks the conclusion of his investigation. “We would reach the same conclusion even if Department of Justice policy did not foreclose criminal charges against a sitting president.”

The public release of the 345-page report comes as Biden looks to shape his 2024 reelection campaign as a referendum on former President Donald Trump, but could provide the Republican front-runner a fresh political opening. Though the special counsel said he would not charge Biden and made clear how different his and Trump’s classified information cases are – namely, that Biden cooperated with investigators while Trump did not – the former president and his allies swiftly seized on the lengthy and at times scathing report.

The report found that Biden knew about the classified documents in his home as far back as 2017, when he was no longer vice president, and that he shared some of the information with a ghostwriter for his memoir published that year.

Biden, Hur wrote, believed he was allowed to keep the classified information that was contained in his personal notebooks, concluding that prosecutors wouldn’t be able to prove Biden intended to break the law at trial.

In remarks late Thursday, Biden said he’s pleased Hur “reached a firm conclusion that no charges should be brought against me in this case.”

“The special counsel acknowledged I cooperated completely. I did not throw up any roadblocks. I sought no delays,” the president said of his response to the investigation.

The report also mentioned apparent memory lapses, saying investigators found Biden’s “memory was significantly limited” during interviews with his ghost writer and an interview with Hur’s office last year. According to the report, Biden – during the 2023 interview – did not remember when his son Beau died nor the years he was vice president.

Hur, according to the report, chose not to bring charges in part because he said it would be difficult to prosecute Biden, who could appear sympathetic to a jury.

This photo from page 80 of the US Department of Justice Special Counsel's special report shows notebooks seized from a file cabinet in President Joe Biden's Delaware home office. - US Department of Justice
This photo from page 80 of the US Department of Justice Special Counsel's special report shows notebooks seized from a file cabinet in President Joe Biden's Delaware home office. - US Department of Justice

“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 stated, adding that Biden “is someone for whom many jurors will want to identify reasonable doubt.”

A visibly seething Biden responded to that passage later, saying, “I am well-meaning. And I’m an elderly man. And I know what the hell I’m doing. I’ve been president – I put this country back on its feet. I don’t need his recommendation.”

White House officials and Biden’s personal lawyer forcefully rejected what they said were inappropriate and incorrect statements about the president’s memory, noting the interview took place in the immediate aftermath of Hamas’ October 7 attack on Israel and suggesting his attention was elsewhere.

The president criticized the special counsel’s focus in the report on his memory, telling reporters: “My memory is fine.”

“There’s even reference that I don’t remember when my son died. How in the hell dare he raise that?” Biden said from the Diplomatic Reception Room in the White House, later appearing emotional as he referenced a rosary he wears that had belonged to Beau.

Hur wrote that Biden cooperated with the investigation and returned the classified documents once they were discovered, noting the significant differences between this case and the charges against Trump.

Biden pointed to that cooperation in a statement after the report was released, noting that he participated in five hours of interview in the days just after the October 7 attack that dominated much of his attention over the final quarter of 2023. “I just believed that’s what I owed the American people so they could know no charges would be brought and the matter closed,” he said.

Hur also wrote that the government did not believe it could prove that Biden “intended to do something the law forbids.”

Biden was “emphatic,” according to the report, that his handwritten notebooks containing classified information were his property, saying in his interview with the special counsel’s office that “every president before me has done the exact same thing.”

FBI agents, according to the report, recovered “materials from the garage, offices, and basement den in Mr. Biden’s Wilmington, Delaware, home.”

The materials included “marked classified documents about military and foreign policy in Afghanistan and notebooks containing Mr. Biden’s handwritten entries about issues of national security and foreign policy implicating sensitive intelligence source and methods.”

This photo from page 93 of the US Department of Justice Special Counsel's special report shows notebooks in a file cabinet in President Joe Biden's Delaware home office. - US Department of Justice
This photo from page 93 of the US Department of Justice Special Counsel's special report shows notebooks in a file cabinet in President Joe Biden's Delaware home office. - US Department of Justice

Differences between Trump and Biden classified documents investigations

The report’s findings drew harsh criticism from Trump, who is preparing for a general election rematch with Biden in November. Republicans have long drawn parallels between Hur’s investigation and that of special counsel Jack Smith, who last year brought charges against the former president related to his handling of classified documents after he left the White House, despite critical differences in the two cases.

Trump claimed Biden’s case “is 100 times different and more severe than mine” and argued that he is facing different treatment under the justice system.

“THIS HAS NOW PROVEN TO BE A TWO-TIERED SYSTEM OF JUSTICE AND UNCONSTITUTIONAL SELECTIVE PROSECUTION,” the former president said in a statement.

Hur noted in his report there were distinctions between the Trump and Biden cases.

Among them is the fact that the National Archives repeatedly tried and failed to get back documents in Trump’s possession. At one point, the FBI secured a search warrant to search his Florida estate.

Biden’s attorneys, on the other hand, notified the National Archives of the materials found in his possession. Those documents were discovered on November 2, just six days before the midterm elections, but the president’s attorneys only publicly acknowledged the discovery of the documents on November 7 — when news reports about the discovery broke.

“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,” Hur noted.

White House and Biden’s lawyers rip report

The White House counsel and Biden’s personal attorney criticized several of the assertions made in Hur’s report, including comments about the president’s memory.

White House counsel Richard Sauber and Biden personal attorney Bob Bauer wrote in a five-page letter to Hur on Monday that raising issues with Biden’s memory was “entirely superfluous.”

In a follow-up statement, Bauer accused Hur of “investigative excess” and said he flouted Justice Department regulations and norms.

“We do not believe that the report’s treatment of President Biden’s memory is accurate or appropriate,” Sauber and Bauer wrote. “The report uses highly prejudicial language to describe a commonplace occurrence among witnesses: a lack of recall of years-old events.”

In a statement Thursday, Bauer said that the special counsel “could not refrain from investigative excess, perhaps unsurprising given the intense pressures of the current political environment.”

“Whatever the impact of those pressures on the final Report, it flouts Department regulations and norms,” Bauer said. “Very little in this opus adds to a clear, succinctly stated understanding of a straightforward conclusion: no misconduct occurred, no charges are warranted.  The Report delves into a discussion of the ‘evidence’ of ‘willful’ retention of classified documents, only to acknowledge that there is, in fact, no case of ‘willful’ retention at all.”

One White House official told CNN that Biden was “understandably distracted” with the Israel-Hamas conflict at the time of the interview.

“To now retrospectively go back and suggest it is indicative of some bigger issue with memory is wrong. It’s just wrong,” the official said.

The White House is also particularly taking issue with the report saying that Biden did not remember when his son Beau died.

“He remembers the day Beau died every day of his life and to suggest otherwise is insulting,” the official said.

A spokesperson for the special counsel’s office declined to comment.

Sauber said in a statement that the report acknowledges “mistakes when packing documents at the end of an Administration or when Members of Congress leave office are unfortunately a common occurrence.”

“We disagree with a number of inaccurate and inappropriate comments in the Special Counsel’s report,” he said. “Nonetheless, the most important decision the Special Counsel made—that no charges are warranted—is firmly based on the facts and evidence.”

Congress receives the report

Even before the report’s release, Republican lawmakers vowed to continue their own congressional investigation into the matter. Congressional lawmakers received a hard copy of the report on Thursday afternoon, according to two sources familiar with the matter.

Attorney General Merrick Garland appointed Hur, a former Trump-appointed US attorney, to lead the criminal probe after Biden’s aides found classified files at his home in Delaware and a private office in Washington, DC.

Though Biden frequently avoids commenting on the case, he said in January 2023 he was surprised to learn that classified documents were found in his former office and that he did not know what was in them. The White House Counsel’s Office has already reviewed the report, according to a spokesperson, and declined to exert any executive privilege on its content.

CNN previously reported that US intelligence memos and briefing materials covering a range of topics, including Ukraine, Iran and the United Kingdom, were among the documents found at the locations connected to Biden, according to a source familiar with the matter.

President Biden's Delaware garage on December 21, 2022. - Department of Justice
President Biden's Delaware garage on December 21, 2022. - Department of Justice
A box from Biden's garage containing classified documents. - undefinedDepartment of Justice
A box from Biden's garage containing classified documents. - undefinedDepartment of Justice

After documents were found at Biden’s home later in January, he said he was cooperating fully with the Justice Department. Biden added that the documents were in a “locked garage.”

The federal probe included interviews with a broad spectrum of witnesses, including Biden himself, who sat for an interview with investigators in October. Investigators also interviewed longtime Biden adviser and current counselor Steve Ricchetti; former White House legal and communications aides; and Kathy Chung, an ex-executive assistant to Biden.

CNN’s Betsy Klein, Nikki Carvajal and Samantha Waldenberg contributed to this report.

This story has been updated with additional developments and details from the report.

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