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Joe Biden “wilfully retained and disclosed” classified documents after serving as Barack Obama’s vice-president but will not face criminal charges, according to a report released by the US Department of Justice on Thursday.
The report compiled by special counsel Robert Hur, who oversaw the investigation, said Biden, as a private citizen following his vice-presidency, kept and revealed classified material, including on military and foreign policy in Afghanistan. There were also notebooks containing his notes on national security matters and “sensitive intelligence sources and methods”, the report found.
Criminal charges were not “warranted in this matter”, the report said, given the evidence did not demonstrate Biden’s guilt beyond a reasonable doubt. This conclusion would have been reached “even if the Department of Justice policy did not foreclose criminal charges against a sitting president”, the report said.
According to the report, the president’s “memory was significantly limited” during interviews with Hur’s office in 2023 as well as with a ghostwriter working on his memoir in 2017. This, coupled with Biden’s “co-operation”, would convince jurors in a potential trial “he made an innocent mistake” and did not seek to break the law, the report said.
Should Biden be charged, he would likely come off to jurors “as a sympathetic, well-meaning, elderly man with a poor memory”, the report added. “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 wilfulness.”
US attorney-general Merrick Garland in January 2023 appointed Hur to investigate the potential mishandling of government documents that were found in Biden’s residential garage in Delaware and his former private office in Washington. The 345-page report was submitted to Congress on Thursday, the DoJ said.
The White House did not immediately respond to a request for comment.
The findings risk reigniting criticism from Republican lawmakers who were outraged when the existence of the documents was revealed in late 2022. They come at a sensitive time for Biden, who is seeking re-election later this year, especially after the president and other Democrats had criticised Donald Trump, the former president and current Republican frontrunner, for mishandling sensitive government material.
Trump has been indicted by a separate DoJ special counsel, Jack Smith, on charges of illegally storing classified documents in his Mar-a-Lago estate in Florida. Prosecutors said the former president had resisted handing over the material for months and allegedly lied to authorities. He has pleaded not guilty.
A first batch of classified material was retrieved by Biden’s lawyers in November 2022 from his private office at the Penn Biden Center for Diplomacy and Global Engagement, a Washington think-tank where he occasionally worked before his election to the White House.
The administration later confirmed a second set of documents was found in Biden’s home in Wilmington, Delaware, after completing a new search for sensitive records that needed to be returned to the National Archives.
The material in question stretched across Biden’s “career in national public life”, the report said. The FBI retrieved classified documents in the garage, offices and basement den at his home in Wilmington.
Other classified files were found at the Penn Biden Center, elsewhere in Biden’s home and at the University of Delaware. But the report concluded he did not “wilfully” keep the material, which “could plausibly” have been transferred by mistake. The DoJ report included photographs of notecards, Biden’s schedules and notebooks as well as file cabinets in his home and boxes in the garage where material was stored.
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