Special Counsel Says Biden Has ‘Faulty Memory’: What We Know

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The special counsel investigating Joe Biden determined in a report released Thursday that the president would not be charged with any crimes for taking classified documents to his home in Delaware in his years between the White House.

Robert Hur, the former U.S. Attorney assigned to the case, found that Biden had taken home “classified documents about military and foreign policy in Afghanistan” as well as handwritten notebooks on national security and foreign-policy issues that involved “sensitive intelligence sources and methods.” The FBI found these documents in the basement, garage, and office of Biden’s home in Wilmington in a voluntary search last January.

Hur declined to prosecute Biden for the retention of classified documents, citing the president’s cooperation with investigators. Donald Trump, who was charged with willful retention of national-defense information, did not cooperate in several attempts to recover the material — to the point that Trump was also charged for making false statements and conspiracy to obstruct justice.

Hur’s report also states that “the evidence does not establish Mr. Biden’s guilt beyond a reasonable doubt.” Several of the documents were handwritten notes related to classified information provided in the daily presidential brief and national-security-council meetings. Hur also states that Biden provided some classified material to his ghostwriter for his memoir Promise Me, Dad. In one recording from February 2017 obtained during the investigation, Biden told his ghostwriter that he “just found all the classified stuff downstairs” at a house he was renting in Virginia.

Hur stated that this recording was the strongest evidence for potential prosecution, but that it would be unlikely for a jury to convict him. National Archives and Records Administration officials have stated that members of every administration since Reagan have mishandled documents in some capacity. Hur wrote that vice-presidents and presidents often get used to keeping documents at home. (The audio of Biden discussing classified documents in the basement was recorded just weeks after Trump’s inauguration.) Hur also stated that the “badly damaged box surrounded by household detritus” in Biden’s garage suggests that he could have forgotten about some of the classified documents, rather than withheld them intentionally.

Details of Biden’s classified-documents handling are likely to be overshadowed by Hur’s observations about the president’s memory. In several different passages, Hur paints a picture of Biden as not only forgetful but deeply unaware of when key events in his life took place. Polls have consistently shown that Biden’s age is the American public’s biggest concern about him.

Hur writes that during interviews with a ghostwriter in 2017 and with Hur’s office in 2023, Biden seemed confused on a number of occasions. In one interview, Biden did not recall exactly when he was vice-president and that he could not remember the year of his son Beau’s death. Hur also writes, in language that appears to editorialize, that Biden was “hazy when describing the Afghanistan debate that was once so important to him.”

Hur even suggests that Biden’s “diminished faculties and faulty memory,” in his words, was one of the reasons he chose not to prosecute the president. “Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt,” Hur wrote. “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.”

Hur concludes that at a possible trial, “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.” It was a line that was immediately seized upon by Republicans to prove their point that the president is too old and doddering to be re-elected.

After the report was released, Donald Trump released a statement decrying the Justice Department’s decisions to prosecute him but not Biden, claiming Biden handled documents in a much worse way than he had. Soon after, on Truth Social, Trump wrote that “Biden took the Documents in his ‘mental primetime’” but otherwise just echoed his previous statement. He later began reposting other people’s messages highlighting the details in the report about Biden’s memory.

Biden’s team pushed back on the memory issue. Richard Sauber, a special counsel to the president, and Bob Bauer, his personal counsel, wrote in a letter to Hur that “We do not believe that the report’s treatment of President Biden’s memory is accurate or appropriate.” They added that “the report uses highly prejudicial language to describe a commonplace occurrence among witnesses: a lack of recall of years-old events.”

In a statement, Biden himself noted that he sat for “five hours of in-person interviews over two days on October 8th and 9th of last year, even though Israel had just been attacked on October 7th and I was in the middle of handling an international crisis.”

This post has been updated.

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