Joe Biden made a short last-minute speech on Thursday after a report from the justice department questioned his ability to remember key events and facts while also clearing him of criminal charges over his handling of highly classified materials.
In his fiery remarks, he sought to emphasize that he participated in a five hour interview for the investigation in the days after the 7 October attack on Israel, when he was occupied with pressing concerns. “I was in the middle of handling an international crisis,” he said.
He also read a section from the report that detailed the distinction between his handling of documents with Donald Trump’s. The former president notably instructed people in his circle to obscure and move documents at his private residence in Mar-a-Lago.
“My memory is fine,” Biden also told a reporter when taking questions. However, Biden made one error in his remarks, mistaking Mexico and Egypt, in a response to a question on the Israel-Gaza conflict.
The year-long investigation by special counsel Robert Hur centered on Biden’s improper retention of highly classified documents from his time as a senator and as vice-president to Barack Obama.
Hur, a Republican, found that Biden “willfully” retained and disclosed the materials, including documents about military and foreign policy in Afghanistan. The report includes photos of documents inside a damaged cardboard box in the garage of his Delaware home. In his speech, Biden called the idea that he willfully retains documents “misleading and just plain wrong”.
Among the reasons Hur gave for not bringing charges was a concern that jurors would not believe that Biden knowingly kept the documents. The special counsel explicitly referenced the 81-year-old’s “significantly limited” memory – an incendiary topic in this year’s election – including his inability to remember what year his son Beau died.
“We have also considered that, at trial, Mr 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,” Hur wrote.
“Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him – by then a former president well into his 80s – of a serious felony that requires a mental state of willfulness.”
In a letter written to Hur dated earlier this week and included in the report, the president’s special counsel Richard Sauber and personal attorney Bob Bauer took issue with the special counsel’s language.
They wrote: “We do not believe that the report’s treatment of President Biden’s memory is accurate or appropriate. 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.’”
Addressing a House Democratic caucus issues conference in Leesburg, Virginia, on Thursday, Biden accentuated the positive side of the report. “I was especially pleased to see the senior special counsel make clear there’s stark differences between this case and Donald Trump,” he said. “Bottom line is the special counsel in my case decided against moving forward on any charges. This matter is now closed.”
But the release of the report is likely to play into the US’s bitterly contested 2024 election, with Republicans poised to jump on any criticism of the president. Trump is also being investigated for improperly holding on to classified documents at his Mar-a-Lago resort in Florida.
The Biden documents included a handwritten memo to then President Obama in 2009 opposing a planned troop surge in Afghanistan and handwritten notes related to intelligence briefings and national security meetings, the report found.
Sensitive records were found in 2022 and 2023 at Biden’s Delaware home and at a private office that he used between his service in the Obama administration and becoming president.
According to Hur’s report, Biden told a writer working on his memoir during a February 2017 conversation at a home he was renting in Virginia that he had “just found all the classified stuff downstairs”.
Hur identified several reasons why he did not charge Biden, including that the documents may have been taken to his home while he was vice-president, when he had the authority to keep such documents.
Hur said Biden would not have faced charges even without a longstanding justice department policy against indicting a sitting president and that he believed a jury would be unlikely to convict him, especially given any trial would have to take place when he left the White House.
Hur wrote that in an interview last year, Biden struggled to recall important episodes in his personal and professional life: “In his interview with our office, Mr Biden’s memory was worse. He did not remember when he was vice-president, forgetting on the first day of the interview when his term ended (“if it was 2013 – when did I stop being vice-president?”), and forgetting on the second day of the interview when his term began (“in 2009, am I still vice-president?”).
“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.”
Biden addressed the mention of Beau in his speech on Thursday evening, becoming visibly angry and emotional. “How in the hell dare he raise that?” he said. “I don’t need anyone to remind me when he passed away.”
Hur, a Republican who served in senior roles at the justice department during the Trump administration, was appointed in January 2023 to oversee the investigation into Biden’s handling of the documents.
The attorney general, Merrick Garland, who was nominated by Biden, put Hur in charge of the investigation to give it a degree of independence from the leadership of the justice department.
Hur’s direct reference to Biden’s mental faculties was expectedly seized on by Republicans. Alex Pfeiffer, communications director for Make America Great Again Inc, a Super Pac that supports Trump, said: “If you’re too senile to stand trial, then you’re too senile to be president. Joe Biden is unfit to lead this nation.”
The House of Representatives judiciary committee, which is led by Republicans, added on social media: “They didn’t want to bring charges against President Biden for the classified documents case because he’s too old and has a bad memory. They’re admitting what we all see every day.”
But Democrats criticised Hur for going beyond his brief and straying into partisan politics. Some drew comparisons with FBI director James Comey, who declined to recommend charges against 2016 presidential nominee Hillary Clinton over her use of a personal email system during her time as secretary of state but rebuked her as “extremely careless”.
Tommy Vietor, a former spokesperson for Obama, tweeted: “Robert Hur clearly decided to go down the Jim Comey path of filling his report absolving Biden of criminal activity with ad hominem attacks, like calling him an “elderly man with poor memory.” Not remotely subtle. Just a right-wing hit job from within Biden’s own DOJ. Wild.”
Trump falsely claimed on Thursday that Biden’s case was worse than his own. The former president said in a statement: “The Biden Documents Case is 100 times different and more severe than mine. I did nothing wrong, and I cooperated far more.”
