Classified documents by dog bed, memory troubles and ghostwriter deleting files: Takeaways from Biden report

Special counsel raises serious concerns while drawing distinctions between actions of Biden and Trump. John Bowden reports

Joe Biden in May 2023 (Alex Wong/Getty Image)

A report on the Justice Department’s investigation into Joe Biden’s unauthorised retention of classified materials was made public on Thursday – and it was as troubling for the president and his public image as it was vindicating for those who argued he had committed no crimes.

The report was authored by Robert Hur, a former US attorney appointed by Donald Trump and later elevated to the rank of special counsel by Attorney General Merrick Garland.

Delivered to Congress this week after many months of investigation and preparation, it recommended no criminal charges for the incumbent president, even were he not protected by immunity from prosecution due to his current stature.

It did, however, contain much that will concern many Americans and was overall far from complimentary of the incumbent president.

The investigators painted a picture of a senile president with severe memory issues whose innocence was less clear than his supporters would have hoped, while not necessarily coming across to a potential jury as malicious or criminal.

Let’s take a look at the key takeaways from Mr Hur’s report:

1. Biden’s memory issues are worse than publicly known

This was by far the most damning aspect of the report, in terms of the impact it will have on public perception of the president.

Mr Hur and his team repeatedly refer to Mr Biden struggling to remember significant details about his life — including, heartbreakingly, the exact year in which his son Beau died. He also could not remember which years constituted his term as vice president.

At one point, investigators recall Mr Biden questioning aloud whether he was “still vice president” in 2009 (that was the first year of his term). He also, on the first day of interviews with Mr Hur’s team, asked: “When did I stop being vice president?”

He also appeared, according to Mr Hur, to have trouble remembering more general facts about his time as vice president; during testimony about his work at the time on the issue of whether to surge US troops to Afghanistan, the president “mistakenly said he ’had a real difference’ of opinion” with a top general with whom historical records showed actually shared his opinion on the 2009 troop surge.

It’s the kind of candid, private revelation about the president’s mental fitness that will seriously undercut the president’s supporters as they try to make the case that he is up for another four-year term. Age and mental ability continue to be Mr Biden’s chief areas of concern as far as polls indicate.

2. Biden took Afghanistan notes he believed to be ‘most important decisions’ from his vice presidency

The actual contents of the president’s classified stash appear to have been wholly centred on, in retrospect, one of the key moments of the Obama-Biden administration. In 2009, the Democratic president undertook a controversial decision to surge troops to Afghanistan in the hopes of driving Taliban forces out of the country entirely; a decision which many saw as an about-face given Barack Obama’s campaign promise to end the war in Iraq.

Mr Biden was one of the loudest voices against that decision at the time, a view which appears vindicated given the Taliban’s takeover of the country in 2021 after Donald Trump began a withdrawal of US contractors and military forces in the final year of his presidency. And the materials the president “removed from the ordinary flow of paper” at the White House were split into two categories: His own, personal, handwritten notes detailing his thinking at the time; and actual documents marked with clear classification labels. One specific document found by FBI agents was a handwritten memo penned by Mr Biden for then-President Obama summing up his arguments against the 2009 troop surge.

Then-vice president Biden retained these documents because he saw them as a central part of his legacy in the White House, investigators wrote in the report.

“Mr. Biden had a strong motive to keep the classified Afghanistan documents. He believed President Obama’s 2009 troop surge was a mistake on par with Vietnam. He wanted record to show that he was right about Afghanistan; that his critics were wrong; and that he had opposed President Obama’s mistaken decision forcefully when it was made – that his judgment was sound when it mattered most,” read the Hur report.

3. Biden stored documents next to a dog bed

The report also revealed that some of the classified documents were stored unceremoniously and in a clearly unsecured fashion in the Biden household, wrote investigators.

Among the more bizarre storage locations was next to a dog bed.

“We also expect many jurors to be struck by the place where the Afghanistan documents were ultimately found in Mr. 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,” the report said.

3. Biden’s ghostwriter deleted audio recordings

This was a serious revelation: Mr Biden’s ghostwriter for his memoir, Promise Me, Dad, Mark Zwonitzer, “deleted digital audio recordings of his conversations with Mr. Biden” after “learning of Special Counsel Hur’s appointment”.

The report goes on to stress that the recordings had major evidentiary value. FBI investigators who received a laptop Mr Zwonitzer voluntarily turned over were, however, able to recover the recordings and the author himself turned over “near-verbatim transcripts he made of some of the recordings”, which investigators said he made no attempts to destroy.

For that latter reason, Mr Zwonitzer was not recommended to be charged either.

Investigators wrote that the “available evidence cannot establish beyond a reasonable doubt that Zwonitzer did so with the intent to impede, obstruct, or influence this federal investigation.”

4. No criminal charges recommended

Lest we forget, the release of this report came as the Justice Department was determining whether Mr Biden, like his 2020 opponent Donald Trump, would face criminal charges for mishandling classified information. And the answer is no, though not a resounding one.

Mr Hur’s team did find that there was evidence that Mr Biden “wilfully” retained documents which, again, had clear classified markings. He also rediscovered them at one point, making it clear that there were multiple opportunities for the president to return them.

But the report did not find that evidence to rise beyond the standard of reasonable doubt, even in a hypothetical scenario wherein Mr Biden did not enjoy presidential immunity. The report concluded that the president would likely appear to a jury as a “well-meaning, elderly man with poor memory”. The president’s memory issues were considered a plausible defence by Mr Hur’s team, who continued in the report: “While such a swift and permanent bout of forgetfulness may seem implausible, several pieces of evidence provide some support for this possibility.”

The report notes one conversation between Mr Biden and his ghostwriter, which Mr Hur’s team describes as a “nonchalant” revelation of the discovery of classified materials “downstairs” in his home. From this tone, the report states, “one conclusion is that if Mr Biden discovered classified documents, it simply was not significant to him and was something he could have quickly forgotten”.

In short, Mr Biden would not fit the role of a convincing defendant. Prosecutors working for Mr Hur were not certain that they would be successful in proving that Mr Biden “willfully” hid documents from the government, even after it was clear he knew of their existence.

5. Despite the criticism of Biden, Hur points out differences between Trump and Biden cases

It’s no secret that the release of this report comes at an intensely volatile moment for America’s political system. The Republican Party remains almost wholly behind Mr Trump even as he faces 91 felony counts stemming from four separate criminal prosecutions — just one related to his handling of classified materials.

Mr Hur’s team made clear that upon investigation the two presidents’ handling of their respective situations was markedly different, and rejected in advance Mr Trump’s cries of a two-tiered justice system.

Addressing the comparison directly, Mr Hur’s report reads: “It is not our role to assess the criminal charges pending against Mr. Trump, but several material distinctions between Mr. Trump’s case and Mr. Biden’s are clear. Unlike the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, proven, would clearly establish not only Mr. Trump’s willfulness but also serious aggravating facts.”

Those aggrevating facts include, but were far from limited to, the ex-president’s refusal to return documents stashed at Mar-a-Lago for months after his team was contacted by the Justice Department for their retrieval.