Five big takeaways from the special counsel’s report on Biden and classified documents

WASHINGTON — Special Counsel Robert Hur’s nearly 400-page report on the classified documents that President Joe Biden kept after leaving office includes new details on why it’s become commonplace for politicians to end up with sensitive information after they leave their posts.

The report also sheds light on why Biden, then a former vice president, shared private information with a ghostwriter, a practice that’s become ubiquitous for high-profile individuals who want to publish a book without actually writing it themselves.

In total, the report includes an executive summary, 17 chapters, a conclusion and three appendices, covering a total of 388 pages. U.S. Attorney General Merrick Garland announced Hur as the special counsel in January 2023; Trump had appointed Hur to lead the prosecutor’s office in Maryland in 2018. He left in 2021 to join the Gibson, Dunn & Crutcher law firm.

Hur declined to recommend criminal charges for Biden. But there are a lot of new details, including about Biden’s memory, that grabbed headlines, so here’s a breakdown of five key points in the report:

Biden’s memory and ‘superfluous’ commentary 

The Hur report says one of the reasons prosecutors didn’t bring charges against Biden was that they believed 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.”

Lower in the report, it says that during an interview with the special counsel, Biden “did not remember when he was vice president” and that he “did not remember, even within several years, when his son Beau died.”

“And his memory appeared hazy when describing the Afghanistan debate that was once so important to him,” the report said.

Biden at a press conference on Thursday night strongly objected to the assertion he could not remember the date of Beau’s death. “There’s even a reference that I don’t remember when my son died,” said Biden. “How in the hell dare he raise that. Frankly, when I was asked the question, I thought to myself it wasn’t any of their damn business.”

Special Counsel to the President Richard Sauber and Bob Bauer, personal counsel to Biden, vehemently rejected all characterizations of Biden’s memory loss in a letter to the special counsel, urging him to amend the report before releasing it publicly.

“We do not believe that the report’s treatment of President Biden’s memory is accurate or appropriate,” they wrote. “The report uses highly prejudicial language to describe a commonplace occurrence among witnesses: a lack of recall of years-old events. Such comments have no place in a Department of Justice report, particularly one that in the first paragraph announces that no criminal charges are ‘warranted’ and that ‘the evidence does not establish Mr. Biden’s guilt.’”

The also wrote that Biden’s “inability to recall dates or details of events that happened years ago is neither surprising nor unusual, especially given that many questions asked him to recall the particulars of staff work to pack, ship, and store materials and furniture in the course of moves between residences.”

“The same predictable memory loss occurred with other witnesses in this investigation,” the two Biden lawyers wrote. “Yet unlike your treatment of President Biden, your report accepts other witnesses’ memory loss as completely understandable given the passage of time.”

Ronald Reagan and precedent for holding onto classified materials after leaving office

Biden is far from the first former executive branch official to keep hold of classified or sensitive materials after leaving office, instead of transferring those documents to the National Archives, according to the report.

The report says the “clearest example” is former President Ronald Reagan, a Republican who held the Oval Office from 1981 through 1989.

Reagan, the report says, left the White House “with eight years’ worth of handwritten diaries, which he appears to have kept at his California home even though they contained Top Secret information.”

“During criminal litigation involving a former Reagan administration official in 1989 and 1990, the Department of Justice stated in public court filings that the ‘currently classified’ diaries were Mr. Reagan’s ‘personal records,’” the report says. “Yet we know of no steps the Department or other agencies took to investigate Mr. Reagan for mishandling classified information or to retrieve or secure his diaries. Most jurors would likely find evidence of this precedent and Mr. Biden’s claimed reliance on it, which we expect would be admitted at trial, to be compelling evidence that Mr. Biden did not act willfully.”

The report goes on to say that historically, “many former presidents and vice presidents have knowingly taken home sensitive materials related to national security from their administrations without being charged with crimes.”

Biden sought to point this out during interviews with the special counsel.

“During our interview of him, Mr. Biden was emphatic, declaring that his notebooks are ‘my property’ and that ‘every president before me has done the exact same thing,’ that is, kept handwritten classified materials after leaving office,” the report says. “He also cited the diaries that President Reagan kept in his private home after leaving office, noting that they included classified information.”

Biden’s conversations with his ghostwriter

The report talks frequently about Biden’s use of a ghostwriter, including what information Biden shared with him and comments the president made about having classified information after leaving office.

“Mr. Biden wrote down obviously sensitive information discussed during intelligence briefings with President Obama and meetings in the White House Situation Room about matters of national security and military and foreign policy,” the report says. “And while reading his notebook entries aloud during meetings with his ghostwriter, Mr. Biden sometimes skipped over presumptively classified material and warned his ghostwriter the entries might be classified, but at least three times Mr. Biden read from classified entries aloud to his ghostwriter nearly verbatim.”

The report says Biden viewed his notebooks as “highly private and valued possessions with which he was unwilling to part.”

“The practices of retaining classified material in unsecured locations and reading classified material to one’s ghostwriter present serious risks to national security, given the vulnerability of extraordinarily sensitive information to loss or compromise to America’s adversaries,” the report says. “The Department routinely highlights such risks when pursuing classified mishandling prosecutions. But addressing those risks through criminal charges, the only means available to this office, is not the proper remedy here.”

Deleted then partially recovered evidence

The report also notes that the ghostwriter, identified as Mark Zwonitzer, deleted recordings of conversations with Biden after learning a special counsel was appointed in the case.

“After telling the Special Counsel’s Office what he had done, the ghostwriter turned over his computer and external hard drive and consented to their search,” the report says. “Based on the FBI’s analysis, it appears the FBI recovered all deleted audio files relating to the memoir, though portions of a few of the files appear to be missing, which is possible when forensic tools are used to recover deleted files.”

The ghostwriter didn’t delete “near-verbatim transcripts of the recordings” and did share those with the special counsel, according to the report.

“In his interviews, the ghostwriter offered plausible, innocent reasons for why he deleted the recordings,” the report says. “He also preserved his transcripts that contain some of the most incriminating information against Mr. Biden — including his statement about finding ‘all the classified stuff downstairs’ in 2017 — which is inconsistent with an intent to impede an investigation by destroying evidence. And the ghostwriter voluntarily produced to investigators his notes and the devices from which the recordings were recovered.”

Documents found near dog bed, Zappos box

Appendix A toward the bottom of the report describes all the documents found in Biden’s office or home, including with their classification levels. It spans 22 pages.

The items included a top secret document “discussing issues related to Russian aggression toward Ukraine” that was attached to a memo from 2014, a 2009 document from the Office of the Director of National Intelligence detailing topics related to the war in Afghanistan, numerous biographies of unidentified members of “a foreign delegation” and Power Point slides detailing options for “the distribution and composition of U.S. forces in Afghanistan after 2014.”

Appendix B details whether certain handwritten materials or notebook entries included classified information. That spans five pages.

Those entries included a 2011 note about a Situation Room meeting with then-President Barack Obama on Afghanistan and Pakistan, a 2014 note about unmanned aerial systems, a 2015 meeting with John Kerry on a “foreign adversary” and a 2016 entry on counterterrorism discussions.

Documents related to Afghanistan were found in “Biden’s Delaware home: in a badly damaged box in the garage, near 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,” according to the report.

“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,” the report says. “Rather, it looks more like a place a person stores classified documents he has forgotten about or is unaware of.”

“We have considered —- and investigated —- the possibility that the box was intentionally placed in the garage to make it appear to be there by mistake, but the evidence does not support that conclusion.”