Special Counsel: Biden ‘Willfully’ Disclosed Classified Materials, But Mental State May Convince Jury to Acquit Him

President Joe Biden “willfully” retained and disclosed highly classified materials when he was a private citizen, including documents about military and foreign policy in Afghanistan and other sensitive national security matters, according to a Justice Department report that nonetheless says no criminal charges are warranted for him or anyone else.

The report from special counsel Robert Hur, released Thursday, represents a harshly critical assessment of Biden’s handling of sensitive government materials, but also details the reasons why he should not be charged with the crime.

The findings will likely blunt his ability to forcefully condemn Donald Trump, Biden’s likely opponent in November’s presidential election, over a criminal indictment charging the former president with illegally hoarding classified records at his Mar-a-Lago estate in Florida.

“Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen,” Hur wrote.

It came after a yearlong investigation into the improper retention of classified documents by Biden, from his time as a senator and as vice president, that were found at his Delaware home, as well as at a private office that he used in between his service in the Obama administration and becoming president.

As part of the probe, investigators reviewed a recording of a February 2017 conversation between Biden and his ghostwriter in which, referring to the 2009 memo to Obama, Biden said that he had “just found all the classified stuff downstairs.” Biden was renting a home in Virginia at the time and consolidated his belongings in Delaware when he moved out in 2019. Prosecutors believe that Biden’s comment was a reference to the same classified records that FBI agents later found in his Delaware home.

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.

“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.”

“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.”

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.

The report said that it considered that Mr. Biden would likely present himself to a jury as an elderly man with a poor memory, just as he did in his interviews with the investigators.

“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,” WNBC News said the report concluded.

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.

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.

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.

With reporting by wire services.