Unpacking a Mixed Bag

By Rafael Hoffman

Most people have a place in their home with items they have long forgotten about or have not taken the time to sort through. As Americans have become increasingly aware, for people who served in the upper echelons of government, those boxes might contain more than a few state secrets.

This was one of several points confirmed by Special Counsel Robert Hur’s 345-page report on classified documents discovered sitting in various corners of President Joseph Biden’s homes and offices. That discovery raised questions about whether the President was guilty of breaking laws governing the proper handling of such items.

“The place where the Afghanistan documents were eventually found in Mr. Biden’s Delaware garage — in a badly damaged box surrounded by household detritus — suggests the documents might have been forgotten,” reads one line of the report, conjuring up an image of classified material stuffed between old photographs and tax returns.

Later, the report reveals what else surrounded the box, “a collapsed dog crate, a dog bed, a Zappos box, an empty bucket, a broken lamp wrapped with duct tape, potting soil, and synthetic firewood.”

For the White House, the report’s most important line is its very first, “We conclude that no criminal charges are warranted in this matter.”

Yet the sentence which garnered the widest public attention was 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.”

The comment, though ostensibly intended to explain why no charges would be pressed, caught the President’s ire and his supporters pushed back, calling it gratuitous and politically motivated.

Irrespective of the reasons for including this detail in the report, the observation, based on hours of interviews, confirmed what many in the public already feel about the 81-year-old President. An ABC/Ipsos poll taken after the report’s release showed that 86% of Americans believe President Biden is too old to serve in the nation’s highest office.

‘Just Found All the Classified Stuff Downstairs’

In late 2022, investigations, media attention, and potential criminal charges over boxes of classified documents found in former President Donald Trump’s possession drew heightened focus on how other officials handle state secrets after their terms of office. As clues mounted of classified documents having remained in President Biden’s possession after his vice presidency concluded, he submitted his files to FBI searches. Around the same time, it came to light that former Vice President Mike Pence had also kept a small bunch of classified papers. His were swiftly returned to the National Archives and an investigation cleared him of any intentional wrongdoing.

The searches of President Biden’s spaces showed that he indeed had a significant number of classified documents strewn in various places, including the garage of a Delaware residence and a former office at the Penn Biden Center. Initial evidence showed no nefarious intent, but it was abundantly clear that Mr. Biden had kept sensitive national security information in insecure locations and likely held them without authorization.

With the Department of Justice Special Counsel investigation into Mr. Trump’s document handling underway, calls arose for Attorney General Merrick Garland to apply the same treatment to President Biden. In question was whether the President had violated the Espionage Act of 1917, the law containing most statutes about handling national security information.

William Banks, professor emeritus at Syracuse University’s law school, said Mr. Garland’s decision was called for, irrespective of the political backdrop.

“The investigation was definitely warranted,” he said. “If the evidence showed the President had these documents in his possession and it was confirmed by a physical search, that had to be taken seriously.”

Mr. Hur’s report confirmed that the President had indeed improperly kept several classified documents from the Obama administration, and a few from his time as a Senator, in insecure locations. The investigation also concluded that the President “willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.”

The strongest evidence that President Biden knowingly retained secret information, and revealed its contents to unauthorized personnel, comes from taped conversations with Mark Zwonitzer, the ghostwriter of a 2017 memoir.

In focus during those discussions was a 2009 memo then-Vice President Biden wrote to former President Barak Obama warning against a troop surge in Afghanistan. Regarding the memo, he told Mr. Zwonitzer, that he “just found all the classified stuff downstairs.” The report says that tapes show President Biden left out some sections of the memo but at least three times quoted from its contents “nearly verbatim.”

Despite these findings, Mr. Hur says he opted against prosecution as the evidence gathered fails to “establish Mr. Biden’s guilt beyond a reasonable doubt,” for several reasons the report goes on to enumerate.

Mr. Hur attributed much of the President’s document retention to his self-image as “a historic figure.” Some of the classified information was found in handwritten notebooks, where summaries of security briefings were intermingled with personal reflections and chronicling. The President told Mr. Zwonitzer that his staff contended a set of notecards had to be given to the National Archives, but that he disagreed. In interviews with Mr. Hur’s team, he likewise asserted that notebooks were his “property” and that “every President before me has done the exact same thing.”

On the notebooks, precedent supports the President’s assertion. After President Ronald Reagan left office, a set of diaries containing classified information became pertinent to a criminal case against a former administration official, but the Department of Justice stated that the notebooks were Mr. Reagan’s property.

Even so, President Biden’s casual treatment of state secrets does not put him in a good light.

“Joe Biden was horrifically sloppy,” said John Malcolm, Vice President of the Heritage Foundation’s Institute for Constitutional Government. “All politicians that keep these types of documents do so out of a sense of ego. Several Presidents seemed to think these were their personal documents, even though they’re wrong.”

‘A Reasonable Juror Could Conclude …’

Despite findings of what Mr. Hur presented as wrongdoing by the President, the report spends much time expounding on why these actions do not rise to the level of chargeable offenses under the DOJ’s standards requiring a good chance of conviction. 

The report says multiple signs cast doubt on whether the President’s retention of papers was intentional or an oversight. Mr. Hur notes that the conversations with Mr. Zwonitzer took place shortly after the close of the Obama administration. Since only a few weeks prior, it would have been routine and legal for the then-Vice President to have the papers in tow, their discovery might have been “an unremarkable and forgettable event.”  Only a few weeks prior, it would have been routine and legal for the then-Vice President to have the papers in tow.

Furthermore, the document’s placement among household items could make a case that they had been overlooked. 

“A reasonable juror could conclude that this is not where a person intentionally stores what he supposedly considers to be important classified documents, critical to his legacy,” wrote Mr. Hur. “Rather, it looks more like a place a person stores classified documents he has forgotten about or is unaware of.”

If potential jurors might be convinced the document retention was accidental, pressing charges would be an uphill battle, likely an endeavor outside the parameters of DOJ guidelines.

“Violation of the law requires a state of mind by the actor to make him complicit,” said Professor Banks. “Biden’s surely a smart man with a lot of knowledge about classified information, but Hur didn’t find proof of any intention to break the law.”

Other factors in Mr. Hur’s decision include the President’s willingness to cooperate with his investigation. That cooperation included self-reporting many of the documents, submitting premises to searchers, and sitting for five hours of interviews. While cooperation, in and of itself, makes little difference to questions of statutory violation, the report notes that it casts doubt on a narrative that the President’s intention was to skirt the law, suggesting rather that the documents were in his home as a result of an “innocent mistake.” 

“I thought [Mr. Hur] did a very thorough job laying out all the indications showing Joe Biden knew he had classified information as well as the pitfalls a prosecution would face in trying to prove to a jury this was done willfully,” said Mr. Malcolm.

‘Well-Meaning, Elderly Man With a Poor Memory’

While the White House is certainly pleased Mr. Hur chose not to press charges, one of his reasons for doing so ignited a firestorm among the President’s team; the octogenarian President’s foggy memory.

The report notes that “Mr. Biden’s memory was significantly limited,” both in conversations with Mr. Zwonitzer in 2017 and interviews for the investigation last year. To back up this assertion, Mr. Hur cites that the President forgot the years his term as Vice President began and ended, as well as the year his son, Beau, died. He also noted a disagreement with General Karl Eikenberry over the Afghanistan troop surge, when in fact General Eikenberry concurred with his position.

Visibly upset by the memory comments, the President hastily summoned an unscheduled press conference to emphasis his innocence and push back against the negative image the report painted.

“I’m well-meaning, and I’m an elderly man, and I know what … I’m doing. I’ve been President, and I’ve put this country back on its feet. I don’t need his recommendation,” he said, seizing on the report’s language. “My memory is fine. … I’m the most qualified person in this country to be President of the United States and finish the job I started.”

The press conference, however, did little to reassure the public on the President’s mental fitness, especially given that at one point he referred to the President of Egypt as the President of Mexico.

The White House and several legal experts attacked Mr. Hur’s inclusion of the memory comments, saying they were out of the scope of his investigation.

“I think it was wholly gratuitous and inappropriate, looks like a political hit job,” said Professor Banks.

Yet, many corners pushed back to defend Mr. Hur’s comments on the President’s memory. As is the case with all Special Counsel reports, Mr. Hur delivered his findings as a confidential document to the Attorney General. 

“Rob Hur was a Special Counsel with the obligation to lay out all the facts and circumstances to the Attorney General,” said Mr. Malcolm. “It was up to Merrick Garland whether to release it or not.”

It was also within the Attorney General’s purview to redact any section of the report he felt did not warrant public viewing, though doing so surely would have invited harsh scrutiny from Republicans and possibly the press.

The Biden-sphere attacked Mr. Hur’s observations about the President’s recall, with the White House Press Secretary saying he is “not a doctor.” Yet, Mr. Hur’s defenders argue that the President’s memory is a significant factor in how a jury would evaluate his mental state when making decisions about document handling. A forgetful defendant could be viewed sympathetically by a jury, a factor the Special Prosecutor would be correct to take into account when weighing whether to recommend charges. 

Not as Bad as It Looks?

Questions of the appropriateness of Mr. Hur’s sharing his impressions of how the President’s interviews reflect on his memory aside, few Americans disagree with his conclusion. Polls show large majorities in both parties question his ability to lead. An Associated Press/NORC poll found that 77% of adults believe President Biden is too old to effectively serve a second term, including 69% of Democrats.

Doubts about his reelection campaign abound even in left-wing media corners. A recent New York Times opinion column suggested the President should find a way to step aside, comparing him to “a lightbulb that still burns so long as you keep it on a dimmer.” 

President Biden was gaff-prone before he entered old age, but his flubs have become graver and more frequent. In recent public remarks, he confused French President Emanuel Macron with Francois Mitterrand, who died over two decades ago.

Despite this widely held opinion about the President, many experts in geriatric medicine argue the public is using the wrong rubric to evaluate his mental fitness.

“People who speak publicly often make mistakes with their words all the time, it’s a common problem, but it doesn’t tell you anything about their judgment,” said Dr. Stuart Jay Olshansky, a professor of public health at the University of Illinois at Chicago who analyzes the longevity of Presidents. “Problems remembering nouns start when you’re 30. Looking at misspoken words and forgetting names, that does increase with aging, but it doesn’t reflect on the operation of the President.”

Dr. Olshansky acknowledged that the advanced ages of the President and his presumptive challenger, Mr. Trump, who is 77, carry higher health risks than previous Presidents. Yet, he said that based on his observations and those of other gerontologists, both are mentally fit for the job.

“If this was an issue, you’d see it in the medical records. We picked through both candidates’ records and found no evidence of cognitive decline or health threats,” he said. “What we see is two men who appear quite healthy for their age … what matters most is crystallized intelligence and both candidates have it in abundance.”

‘Visible, But Not Vocal’

Still, arguments that the President’s forgetfulness and often crusty demeanor are not as reflective of his effectiveness behind closed doors run up against other indicators he might be past his prime. While maintaining a schedule that is vigorous by any standards and dealing daily with the world’s weightiest problems, President Biden has spent more time at private residences than recent predecessors. He also conspicuously seeks to minimize unscripted appearances, usually reading from notes or a teleprompter.

 “I think the White House is doing the best they can with an unfortunate situation,” said Anne Danehy, professor at Boston University’s College of Communication. “There have been ‘oh no’ moments, but he is the President of the United States; voters need to hear from him.”

While the vast majority of Americans feel President Biden’s age and perceived acuity are knocks against him, it is unclear what role that will play in how they vote.

“Voters evaluate candidates based on how they view their ability to do the job and their general alignment more than on their position on any given issue,” said Professor Danehy.

Yet, that rubric too could present problems for the Biden campaign. The same ABC/Ipsos poll, which found 86% of Americans thought he was too old to serve, found he lagged Mr. Trump in the degree to which voters trust them on key issues including crime, immigration, inflation, and handling conflicts in Ukraine and Gaza. President Biden came out ahead in education and healthcare.

Cognizant of the extent to which the President’s fumbled public statements reflect on his image with voters, Professor Danehy said the White House and Biden campaign are likely crafting a strategy to minimize such moments.

“I think they’ll want to have him visible, but not vocal,” she said. “If he’s not around, people start asking, ‘Where is he?’ They’ll do more prep and media training, but more than that, they’ll try not to put him in situations where he can speak freely.”