Biden responds to special counsel report on handling of classified documents

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

White House counsel Richard Sauber and Biden personal attorney Bob Bauer wrote a five-page letter to Hur on Monday, saying 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.” 

A spokesperson for the special counsel’s office declined to comment on the alleged “inaccurate and inappropriate comments in the Special Counsel’s report.”

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.”

The report includes a number of photos depicting various parts of President Joe Biden’s homes, materials at issue in the investigation and other relevant scenes over the years.

One such photo shows notebooks “seized from (a) file cabinet under (a) television in (Biden’s) Delaware home office.”

The report said that Biden “routinely took notes in his notebooks about classified subjects and during meetings where classified information was discussed."

“For example, he regularly took notes related to the President's Daily Brief, which typically contains classified information. He also regularly took notes during meetings in the White House Situation Room, and numerous photographs document this practice,” according to the report.

Investigators noted that although “none of the notebooks have classification markings, some of the notebooks contain information that remains classified up to the Top Secret/Sensitive Compartmented Information level.”

Another set of photos showed Biden’s Delaware garage, which “contained a significant volume of boxes, storage, and clutter,” including one that contained classified documents related to Afghanistan policy.

House Judiciary Republicans called special counsel Robert Hur’s decision not to prosecute President Joe Biden after finding he willfully retracted classified information a "double-standard."

More about the report: Hur's investigation found Biden willfully retained and disclosed classified military and national security information, but he will not face charges.

In the report, Hur noted that Biden cooperated with the investigation and returned the classified documents once they were discovered — noting the significant differences between this case and the one against former President Donald Trump, who was charged last year in relation to his handling of classified documents after he left the White House.

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 a source familiar with the matter.

Attorney General Merrick Garland appointed special counsel Robert 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.   

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. 

Prosecutors revealed in the report that they considered, but ultimately declined, charging a man who ghostwrote Joe Biden's 2017 memoir with obstruction of justice after learning the writer deleted audio recordings he had that were of “significant evidentiary value.” 

The writer later turned over his computer and external hard drive, according to the report, and the FBI was able to mostly recover the deleted files. 

The special counsel investigation 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 the ghostwriter for his memoir published that year. 

Findings from Special counsel Robert Hur's report on the investigation into Joe Biden's mishandling classified documents are likely to draw harsh criticism from former President Donald Trump and his allies in the lead-up to the 2024 presidential election.  

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.  

Hur notes the distinction between the two cases in the report:

Special counsel Robert Hur noted in his report there were distinctions between Donald Trump and Joe Biden's classified documents 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.

“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.

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

Joe Biden also kept “classified notebooks in unsecured and unauthorized spaces at this Virginia and Delaware homes” after leaving the vice presidency.   

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.” 

According to the report, investigators found Joe Biden’s “memory was significantly limited” in interviews they conducted with him in 2023 as well as interviews with his ghostwriter.  

Because of that, special counsel Robert Hur wrote in the report, investigators concluded that 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.”  

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

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.”