Joe Biden

Special Counsel Robert Hur on Thursday released his long-awaited report on President Joe Biden’s handling of classified documents, and it’s not great news for the president on multiple fronts. The report concludes that no criminal charges against Biden are warranted, a key difference from Donald Trump’s situation. But it also says there was evidence that Biden “willfully” retained and disclosed highly classified materials when he was a private citizen. And it highlights his confusion and “significantly limited” recall of events related to the documents. Some takeaways from the 345-page report: Biden can breathe easier knowing he won’t face criminal charges for his handling of the documents. But the Hur report nonetheless does damage to Biden’s case that he brings normalcy to the presidency after the chaos of Trump’s tenure. Images of federal agents finding a classified Biden memo on Afghanistan from his time as vice president stashed in his Delaware garage work against the Democratic president’s argument that he’s a more competent chief executive and a more careful steward of the nation’s secrets than Trump.

Trump is under criminal indictment for knowingly hanging on to to classified records at his Mar-a-Lago estate in Florida and resisting turning them over, perhaps the most damning — and stickiest - of the four criminal cases against him. Biden, for his part, faces no charges. Weeks after the FBI searched Trump’s private residence and turned up classified documents, Biden slammed his predecessor as “totally irresponsible.” As Biden ramps up his 2024 reelection campaign — and his case against Trump - he’s not likely to try that argument again. The 81-year-old Biden was already dogged by questions about whether he’s too old to serve a second term. The special counsel report will hardly be helpful to Biden on that count.

Hur noted that “Mr. Biden’s memory was significantly limited” in interviews with the special counsel office as well as with a ghostwriter that Biden worked with. In his interview with the special counsel’s office, Hur writes, Biden twice appeared confused about when his term as vice president ended. The report notes that Biden, who speaks frequently about his son Beau’s death, could not remember “even within several years” when he died. “And his memory appeared hazy when describing the Afghanistan debate that was once so important to him,” the report said. “Among other things, he mistakenly said he ‘had a real difference’ of opinion with General Karl Eikenberry, when, in fact, Eikenberry was an ally whom Mr. Biden cited approvingly in his Thanksgiving memo to President Obama.” Polls have shown that many Americans, including Democrats, have concerns about Biden’s age. He would be 86 at the end of his second term if reelected.

Biden was absolved of criminal behaviour, but it’s Trump who may benefit. The Republican former president, who is on a glidepath to his party’s nomination this year, has been charged with dozens of felony counts related to his handling of classified materials stored at his Florida estate after leaving the White House. Trump has been crying foul on the campaign trail for much of the last year, noting that Biden had also stored classified materials in his garage. Thursday’s report will have little bearing on Trump’s legal case, but it makes his political argument stronger. There are, of course, stark differences between how Trump and Biden navigated their classified document cases. Biden cooperated with authorities. Trump fought them to the point that the investigators had to get a court order to search his home in Florida after he repeatedly rebuffed requests for the documents.

Still, Trump can now cite special counsel Robert Hur’s finding that Biden retained and disclosed highly classified materials. And Trump can at least muddy the Democrats’ argument that he alone represents a threat to democracy. Trump campaign spokesman Jason Miller simply shared a smiley face in one social media post responding to Hur’s report. But Trump still has another important hurdle: special counsel Jack Smith’s investigation in Washington that charges Trump with crimes for his role in the January 6, 2021, attack on the US Capitol.

The parallels are striking. An embattled candidate Trump was struggling under the weight of mounting political crises on the eve of the general election that year when federal prosecutors made an unusual announcement about his Democratic opponent’s handling of classified documents: Hillary Clinton’s emails. In late October of 2016, FBI Director James Comey announced that Clinton would not face criminal charges, but had made a “serious error of judgment” in her handling of State Department emails on her private email server. It was a legal victory for her. But the politics were bad for Democrats. Some are convinced that Comey’s decision to criticise Clinton so openly - even while ruling out criminality — ultimately enabled Trump’s victory. The timing is dramatically different this time. Comey’s announcement was just 11 days before the 2016 general election, while Thursday’s comes nine months before Election Day 2024. That gives Biden’s campaign a lot more time to do what Clinton could not — convince voters that the legal victory is what matters. During his interview with special counsel investigators, Biden was “emphatic’ that his notebooks were “my property.” “Every president before me has done the exact same thing,” he said. The statement had echoes of former president Donald Trump, who has been charged with illegally possessing classified documents at his Mar-a-Lago estate after he left office. “Under the Presidential Records Act, which is civil not criminal, I had every right to have these documents,” Trump has said.

Sounds similar, but there are some differences. Trump was arguing that large swaths of presidential records were his personal property. Biden was making a specific claim about personal writings, for which there is legal precedent. Investigators said that Biden mentioned that former President Ronald Reagan kept diaries in his home and that contemporaneous evidence from the investigators suggested that Biden believed he could keep the notebooks at home. That’s true. Reagan left the White House in 1989 with eight years’ worth of handwritten diaries though they contained top secret information, investigators said. Those documents came up during criminal litigation in the late 1980s and were referred to by the justice department as “personal records.”

Trump, though, has been accused of purposefully hanging on to boxes of documents even after National Archives requested they be returned, forcing FBI agents to come to his estate to take them. The documents were military secrets and details of the US nuclear capabilities that prosecutors argue he sought to keep as mementos, prosecutors said. The special counsel’s report takes what seems at times gratuitous aim at Biden’s memory and mental capability as it lays out the ways in which the president could mount a hypothetical defense had he been charged with a crime.

Associated Press