Special counsel says Joe Biden ‘wilfully’ held on to classified material

President Joe Biden “wilfully” held on to classified materials that were discovered at his home in Delaware and the office of a think tank in Washington DC, but should not face criminal charges for doing so, a special prosecutor appointed by the attorney general found in a report released on Thursday.

The prosecutor, former Trump appointee and ex-Maryland US Attorney Robert Hur, did not recommend that Mr Biden face criminal charges, citing what he described as significant “mitigating factors” which led him to state that charges were not warranted and would not have been warranted even if Mr Biden were not president and barred from being prosecuted by Department of Justice policy.

In a statement, Mr Biden said he was “pleased” that Mr Hur decided that there would be no charges against him and said that was the outcome he’d been expecting “all along”.

“This was an exhaustive investigation going back more than 40 years, even into the 1970s when I was a young Senator. I cooperated completely, threw up no roadblocks, and sought no delays,” said Mr Biden, who also noted that he’d been “so determined” to assist Mr Hur’s probe that he’d sat for in-person interviews in the days following the 7 October 2023 terrorist attack in Israel.

“Over my career in public service, I have always worked to protect America’s security. I take these issues seriously and no one has ever questioned that,” he added.

Mr Hur said the materials retained by Mr Biden after his term as vice president ended in 2017 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 sources and methods” that were recovered from “the garage, offices, and basement den” at Mr Biden’s home in Wilmington, Delaware.

The special counsel, who was appointed by Attorney General Merrick Garland last year, said much of the material now deemed to have been classified included handwritten notebooks kept by Mr Biden during his time as vice president, which had been kept in “unsecure spaces” in his home and used during the writing of his 2017 memoir, Promise Me, Dad.

Mr Hur also said Mr Biden had allowed the ghostwriter who assisted him on the book to view the notebooks, which as a matter of law constituted sharing classified information with an authorised person. But he also noted that Mr Biden’s memoir did not contain any information deemed to have been classified. Documents dating back to the Obama administration were also shared with Mr Biden’s ghostwriter, he added.

But the prosecutor’s report concluded that he did not belief there was sufficient evidence for a jury to convict Mr Biden of any crime, citing his status as a vice president and president, since the holder of both of those offices is authorised to possess classified information at their home.

He said the “best case” for a charge would have been when Mr Biden told his ghostwriter that he’d discovered classified materials in a Virginia rental home in 2017, though Mr Hur also concluded that Mr Biden would likely have been able to raise “reasonable doubt” in the minds of potential jurors as to whether the retention was “wilful” by claiming that he’d forgotten about them after the incident with his ghostwriter.

“For a person who had viewed classified documents nearly every day for eight years as vice president, including regularly in his home, finding classified documents at home less than a month after leaving office could have been an unremarkable and forgettable event,” he said, adding later that in tape-recorded conversations with his ghostwriter reviewed by investigators, the documents in question did not come up.

He also suggested that Mr Biden could argue that the location of the documents when they were discovered last year in a “badly damaged box surrounded by household detritus” indicated that he’d forgotten about them.

Mr Hur also noted that Mr Biden’s memory about the documents was “significantly limited” during the recorded 2017 conversations and a 2023 interview with investigators.

“His cooperation with our investigation, including by reporting to the government that the Afghanistan documents were in his Delaware garage, will likely convince some jurors that he made an innocent mistake, rather than acting willfully-that is, with intent to break the law-as the statute requires,” he said.

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