Biden Cleared in Documents Case; Report Raises Concerns About His Memory

The special counsel investigating President Biden said in a report released on Thursday that Mr. Biden had “willfully” retained and disclosed classified material after leaving the vice presidency in 2017 but concluded that “no criminal charges are warranted.”

Robert K. Hur, the special counsel, said in an unflattering 300-plus-page report that Mr. Biden had left the White House after his vice presidency with classified documents about Afghanistan and notebooks with handwritten entries “implicating sensitive intelligence sources and methods” taken from White House briefings.

Mr. Hur criticized Mr. Biden for sharing the content of the notebooks with a ghostwriter who helped him on his 2017 memoir, “Promise Me, Dad,” even though he knew some of it was classified.

But the evidence “does not establish Mr. Biden’s guilt beyond a reasonable doubt,” said Mr. Hur, a former Trump Justice Department official appointed by Attorney General Merrick B. Garland in January 2023 to lead the inquiry after classified files were found in the garage and living areas of Mr. Biden’s home in Delaware and his former office in Washington.

While Mr. Hur decided not to prosecute Mr. Biden, 81, some of the reasoning he cited for his decision immediately created a new political crisis for the White House. In recounting his interviews with the president, Mr. Hur portrayed him as unable to remember key dates of his time in the Obama White House — or even precisely when his son Beau had died.

“Mr. Biden would likely present himself to a jury, as he did during our interview with him, as a sympathetic, well-meaning, elderly man with a poor memory,” Mr. Hur wrote.

He cited Mr. Biden’s age by the time he would leave office — either in 2025 or 2029 — as an additional factor. It would be difficult to convince a jury that “a former president well into his 80s” was guilty of a felony that “requires a mental state of willfulness,” Mr. Hur added.

In a statement after the report was made public, Mr. Biden said he took national security seriously, “cooperated completely, threw up no roadblocks and sought no delays” in responding to Mr. Hur’s requests for information.

In fiery remarks later from the White House, Mr. Biden assailed the report, saying his memory was fine and that he had not willfully retained classified material. He also expressed outrage that Mr. Hur had suggested he could not remember when his son had died.

“How in the hell dare he raise that?” Mr. Biden said.

Earlier, the White House counsel and Mr. Biden’s private lawyers slammed Mr. Hur for suggesting the president had flouted the law even as he concluded that prosecutors did not have the evidence to prove that in court. And they assailed Mr. Hur’s characterization of Mr. Biden as suffering from memory problems, saying it was hardly unusual to have trouble recalling dates and details of long-ago occurrences.

Bob Bauer, Mr. Biden’s personal attorney, accused Mr. Hur of disregarding Justice Department “regulations and norms” and compared the special counsel’s conduct to that of James B. Comey, the F.B.I. director who during the 2016 presidential campaign criticized Hillary Clinton’s handling of sensitive information even though he declined to recommend criminal charges.

In a letter included in the appendix of the report, Mr. Biden’s lawyers called the inclusion of discussion of Mr. Biden’s memory “pejorative” and noted that the five-hour interview with the president had taken place shortly after the Oct. 7 terrorist attacks on Israel, after Mr. Biden had spent hours on the phone with foreign leaders.

“The report uses highly prejudicial language to describe a commonplace occurrence among witnesses: a lack of recall of years-old events,” they wrote, adding: “This language is not supported by the facts, nor is it appropriately used by a federal prosecutor in this context.”

Still, Mr. Hur’s assessment is sure to provide potent new lines of attack for former President Donald J. Trump. Mr. Trump has long sought to sow doubts about Mr. Biden’s fitness for office, and he has been seeking to discredit the Justice Department over its far more serious investigation into Mr. Trump’s retention of classified materials after leaving office and his alleged obstruction of the government’s efforts to reclaim them.

Mr. Hur’s report includes a photograph of the open box where the F.B.I. found classified Afghanistan documents in Mr. Biden’s cluttered garage, next to a ladder and old exercise equipment, and another image of sensitive materials stored in a cardboard banker’s box.

Similar pictures taken during the 2022 search of Mr. Trump’s resort in Florida, Mar-a-Lago, showed that he had stored boxes in a bathroom that was accessible to visitors. After Mr. Hur’s report was made public, Mr. Trump sent out the image of the Biden garage through his campaign’s email account, along with the claim, unsupported by any evidence, that he had “cooperated far more” than Mr. Biden.

In fact, Mr. Hur noted that Mr. Biden had fully cooperated with the investigation, allowing investigators unimpeded access to his properties. Mr. Trump has been accused of misleading the government for months over the hundreds of highly classified documents in his possession and of having his personal staff move boxes as officials were seeking their return.

In the report’s introduction, Mr. Hur suggested that Mr. Biden’s cooperation with investigators was a factor in his decision not to bring charges.

Unlike Mr. Biden, Mr. Trump refused to return the materials he retained “after being given multiple chances to return documents and avoid prosecution,” he wrote.

Mr. Hur was bound by a Justice Department legal policy that makes sitting presidents immune from being charged with crimes while in office. But he said that his decision not to pursue criminal charges would have been the same even if regulations had allowed him to indict Mr. Biden.

The special counsel conducted 173 interviews, including with Mr. Biden and his top advisers, and examined hundreds of thousands of documents. Some of the material was collected before Mr. Hur took over the investigation, when Mr. Garland assigned John R. Lausch Jr., then the Trump-appointed U.S. attorney in Chicago, to make preliminary inquiries.

It was Mr. Lausch who recommended appointing a special counsel, department officials said.

Some of the classified material related Mr. Biden’s opposition, in 2009, to temporary troop increases in Afghanistan supported by President Barack Obama’s team, which he viewed as “a mistake akin to Vietnam,” Mr. Hur wrote.

Other documents pertained more broadly to Mr. Biden’s attempt to “document his legacy, and to cite evidence that he was a man of presidential timber,” the report noted.

In a conversation recorded at a rented property in Virginia in February 2017 — a month after he left office — Mr. Biden told his ghostwriter he had “just found all the classified stuff downstairs.”

Mr. Hur said that exchange was the strongest basis for a prosecution he had found. But he concluded that a jury was unlikely to convict Mr. Biden, given the fact that he had grown accustomed to legally retaining documents as vice president, might have not fully adjusted to the new restrictions and believed he had the right to keep his personal notes — based on President Ronald Reagan’s retention of similar materials for decades.

In his interview with investigators, Mr. Biden declared that his notebooks were “my property” and said that “every president before me has done the same thing,” singling out Mr. Reagan.

The special counsel said Mr. Biden was mistaken about the law, but conceded that his view “finds some support in historical practice.”

Mr. Hur said that the decision not to charge Mr. Biden for possessing the other classified materials was more straightforward: Prosecutors could not establish whether classified documents discovered at Mr. Biden’s house had been willfully retained, or whether they had been obtained during his vice presidency and sloppily stored.

The classified documents discovered in Mr. Biden’s Delaware garage in a “badly damaged box surrounded by household detritus” indicated he simply may have forgotten he had it over the years, rather than intentionally breaking the law, Mr. Hur concluded.

Charlie Savage contributed reporting.