By Ken Dilanian—
NBC News
The controversy over special counsel Robert Hur's characterization of President Joe Biden's memory has obscured one of the most surprising findings of his report: evidence that Biden knowingly kept classified materials at home for years and failed to hand them over. .
After a year-long investigation, Hur found that the evidence of “intentional restraint” (the language of the criminal statute) was not strong enough to warrant prosecution.
And he explained in detail why the criminal charges against former President Donald Trump for his handling of classified materials include much more serious allegations of misconduct than in Biden's case.
For Democrats, Hur's conclusion that there was no criminal case to bring against the president is the most important conclusion.
But for some national security experts, the revelation that Biden told his ghostwriter that he discovered classified documents in his Virginia home in 2017, with no indication that he returned them, was unexpected and troubling.
So was the revelation that Biden gave classified information to the ghostwriter on at least three occasions and that she kept notebooks full of state secrets in unlocked drawers in her home office.
National security experts pointed out that a senior government official like Biden should be held to a higher ethical standard than if a jury would convict him of a serious crime.
Joe Biden during the National Association of Counties Legislative Conference in Washington on February 12, 2024. Jim Watson / AFP - Getty Images
“It may not be criminal, but it is reckless and terrible, because you have no idea what sources and methods you are putting at risk,” said NBC News legal contributor and former federal prosecutor Chuck Rosenberg.
“Someone who served as vice president of the United States should do things better.”
White House spokesman Ian Sams said Hur's report “found that the totality of the evidence does not support intentional withholding.”
Sends a horrible message to the workforce that our senior leadership is not held accountable for their mishandling of classified information
Mark Zaid, attorney specializing in classified information cases
“The report also notes how, in early 2017, the president found another classified document and handed it over through his assistant, illustrating precisely what he told the special counsel,” according to Sams.
“That if he had found classified documents he would have returned them.”
The White House spokesman also noted that Hur's report says prosecutors were unable to establish that Biden knew the information was classified when he shared it with his ghostwriter.
Biden, who has been immersed in the world of state secrets for decades, has taken a firm line on the handling of classified documents.
When asked in September 2022 about Trump storing classified documents in his Mar-a-Lago home, he responded: “How could that happen?
How can someone be so irresponsible?
And when classified documents were discovered in his Delaware garage and elsewhere in December 2022, he said he was surprised, adding: “People know that I take classified documents and classified information seriously.”
But Hur's report says documents found in a box in Biden's garage, many of them with classified marks, relate primarily to his role in opposing a 2009 Obama Administration troop surge in Afghanistan.
Some were classified as “top secret.”
When they were discovered in late 2022, Biden's team immediately called the FBI.
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The special counsel said evidence suggests these were the same documents Biden was referring to in 2017, when he told a ghostwriter in a taped interview that he “just found all the stuff classified downstairs,” in a house in Virginia that he rented after leaving the vice presidency.
The special prosecutor found no evidence that classified documents had been turned over at that time.
That's perhaps the report's most damaging finding:
Biden knew he had classified documents in 2017, but there's no evidence he took steps to turn them over.
But the report says the special counsel could not conclusively identify those documents, and therefore prosecutors could not prove to the jury exactly what that 2017 comment referred to.
Still, the report contradicted the message the White House had expressed for months: that Biden did not know he had classified documents in his home and office.
Sams, the White House spokesman, said Biden told the special counsel that he believed he was referring to a handwritten letter he had sent to President Barack Obama, a letter that was not marked as classified.
But Hur's report notes that Biden "did not remember anything at all about this incident," an especially important factor that Justice Department officials say led Hur to include controversial assessments of Biden's mental state, including that He would appear to a jury as “an older, sympathetic, well-intentioned man with a bad memory.”
The ghostwriter, Mark Zwonitzer, was helping Biden write a memoir about his son's death titled
Promise Me, Dad
.
The report says Biden also shared classified information with Zwonitzer on three occasions from notebooks Biden had collected during his time in office.
Biden then stored those notebooks in unsafe locations, he says.
The report also notes that “the evidence convincingly shows” that Biden knew the notebooks contained classified information.
But he also acknowledges that prosecutors would not be able to prove to a jury that the exact passages Biden read to the ghostwriter were classified.
The report notes that other presidents, including Ronald Reagan, took home notebooks or diaries containing classified information and were never prosecuted.
And he says Biden believed he had the right to keep his own notebooks.
Therefore, he concludes, a prosecution would be difficult.
Still, there were warning signs.
Hur's report found that in October 2016, while then-Vice President Biden was collecting cards to use in his memoirs, a military aide working in his office expressed concern that the notes contained classified material.
The assistant's immediate supervisor disagreed, so she wrote an email for the record saying that she believed “these records are being mishandled.”
In another case, the report says, a lawyer working for the vice president's office noticed that some of the cards he was collecting "contained notes on the President's Daily Briefing," which often contains some of the most sensitive intelligence data ever released. compiled by the United States Government.
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Attorney Mark Zaid, who specializes in cases involving classified information, said Hur's findings were “worse than I expected in terms of the president's conduct over the years.
But even then, none of it surprised me.”
“His conduct was emblematic of what we see all the time with former high-ranking government officials,” Zaid added.
“It sends a horrible message to the workforce that our senior leadership is not held accountable for their mishandling of classified information.”
Zaid said a typical client who did what Biden had done would likely not be prosecuted, but “without a doubt would have faced the loss of their federal employment and/or their security clearance.”