Special Counsel report on classified docs lays bare Biden's memory issues
"Mr. Biden's memory was significantly limited, both during his recorded interviews with the ghostwriter in 2017, and in his interview with our office in 2023."
The Special Counsel report in the investigation into President Biden’s mishandling and retention of classified documents at his Delaware residence dropped late on Jan. 8 and offered an alarming assessment of the President’s mental abilities.
According to the report, Biden is a “well-meaning elderly man” whose memory is “significantly limited.”
Despite the report noting Biden “willfully” retained classified material and information that jurors might find “compelling,” Special Counsel Robert Hur recommends that the DOJ should not prosecute him because jurors also may just believe Biden “made a mistake.”
Key Sections:
Page Nine:
In addition. Mr. Biden's memory was significantly limited, both during his recorded interviews with the ghostwriter in 2017, and in his interview with our office in 2023. And his cooperation with our investigation, including by reporting to the government that the Afghanistan documents were in his Delaware garage, will likely convince some jurors that he made an innocent mistake, rather than acting willfully-that is, with intent to break the law-as the statute requires.
Page 222 begins a section labeled “D. For other reasons, a jury will be unlikely to unanimously convict Mr. Biden.” Here is a key part, but reading the entire section is suggested.
Third, as discussed to some extent above, Mr. Biden will likely present himself to the jury, as he did during his interview with our office, as a sympathetic, well-meaning, elderly man with a poor memory. While he is and must be accountable for his actions-he is, after all, the President of the United States-based on our direct observations of him, Mr. Biden is someone for whom many jurors will want to search for reasonable doubt.
It would be difficult to convince a jury they should convict him by then a former president who will be at least well into his eighties of a serious felony that requires a mental state of willfulness.
Finally, while jurors might not find reasonable doubt in any one the evidentiary shortcomings identified above, some jurors may find reasonable doubt because of the cumulative effect of some or all of these shortcomings.
Chapter eleven begins a sort of conclusion portion of the report and begins on page 204.
There is evidence that, after his vice presidency, Mr. Biden willfully retained marked classified documents about Afghanistan and unmarked classified handwritten notes in his notebooks, both of which he stored in unsecured places in his home. He had no legal authority to do so, and his retention of these materials, and disclosure of classified information from his notebooks to his ghostwriter, risked serious damage to America's national security. But the evidence falls short of proof beyond a reasonable doubt that Mr. Biden retained and disclosed these classified materials willfully.
The Department's prior treatment of former presidents and vice presidents who kept national security materials also counsels against prosecution of Mr. Biden, as do the most relevant aggravating and mitigating facts presented here."'
Therefore, under established Department principles, we decline criminal charges against Mr. Biden relating to the classified Afghanistan documents and his classified notebooks. We would do so even if we were not bound by the Office of Legal Counsel's legal conclusion that a sitting president may not be charged with federal crimes.
The very next section in chapter eleven concludes "there is evidence President Biden willfully retained" the Afghanistan documents, yet not enough proof "beyond a reasonable doubt" for a conviction. This section also goes on to say Biden likely found the documents at an earlier date and then "forgot" about them. The report also says Biden "self-reported" he has possession of the documents, implying a lack of a crime and a jury would likely acquit.
Page 22:
Mr. Biden's memory also appeared to have significant limitations, both at the time he spoke to Zwonitzer in 2017, as evidenced by their recorded conversations, and today, as evidenced by his recorded interview with our office. Mr. Biden's recorded conversations with Zwonitzer from 2017 are often painfully slow, with Mr. Biden struggling to remember events and straining at times to read and relay his own notebook entries.
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. 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.
In a case where the government must prove that Mr. Biden knew he had possession of the classified Afghanistan documents after the vice presidency and chose to keep those documents, knowing he was violating the law, we expect that at trial, his attorneys would emphasize these limitations in his recall.
Starting on page 384, Biden’s lawyers weigh in and there are interesting objections as to the characterization of Biden's memory and demeanor.
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." If the evidence does not establish guilt, then discussing the jury impact of President Biden's hypothetical testimony at a trial that will never occur is entirely superfluous.
Under section 1, his lawyers also claim he's been treated differently than "other witnesses,” and state, “We request that you revisit your descriptions of President Biden's memory and revise them so that they are stated in a manner that is within the bounds of your expertise…”
This criticism of descriptions could also be applied to the classified documents case against former President Trump in which Attorney General Merrick Garland and the FBI engaged in the first raid ever - and a highly publicized one at that - of a former President’s residence.
Section five of the lawyers’ rebuttal includes quoting earlier text about a particular box containing both personal items and classified documents, Biden had no clue how they got mixed up:
“When asked how things like a binder labeled "Beau Iowa" got into the 'beat-up" box. the President responded, "'Somebody must've, packing this up, just picked up all the stuff and put it in a box, because I didn't."
The “I don’t know how that got there” answers from Biden continued in section six.
One has to consider this report and its characterizations of Biden’s memory are so on the nose in terms of being a means to force him off the 2024 presidential ballot.
Trump was not quiet about the findings.
"They should immediately drop the case against me," Former President Trump told Fox News Digital after the report dropped. "I am covered by the Presidential Records Act — he wasn't. He had many, many times more documents — totally unguarded. Mine were always surrounded by Secret Service and in locked rooms."
"Deranged Jack Smith should drop the case immediately against us," Trump said. "It is election interference…. I did absolutely nothing wrong."
Read the full Special Counsel document:
Report of the Special Counsel on the Investigation Into Unauthorized Removal, Retention, and Disclosure of Classified Documents Discovered at Locations Including the Penn Biden Center and the Delaware Private Residence of President Joseph R. Biden, Jr.
More To The Story
Late yesterday evening after the report came out, Biden gave an unannounced address that at times underscored the report’s findings about his mental fitness.
Here’s the full video, watch for yourself:
Biden, at times, angrily clashed with reporters following his remarks.
FOX News' Peter Doocy outright asked Biden about his mental abilities.
"I'm well-meaning, and I'm an elderly man and I know what the hell I'm doing. I've been president. I put this country back on its feet. I don't need his recommendation," Biden responded, appearing to agree and disagree with the report.
Doocy asked, “How bad is your memory and can you continue as president?”
Biden replied, "My memory is so bad I let you speak."
Watch the interaction between Doocy and Biden on X.
Biden also went after Hur for suggesting in the report that he couldn't remember when his son Beau died, however, his remarks became awkward.
"How dare he raise that?" Biden said. "Frankly, when I was asked a question, I thought to myself, what's that any of your damn business?"
"Let me tell you something...I swear, since the day he died, every single day...I wear the rosary he got from Our Lady..." Biden said as he was tugging on the rosary on one wrist and he then just stopped talking. It appeared he had forgotten where the rosary came from.
About nine minutes in after taking a few questions, Biden ended the event and started to walk off but a question caught his ear about the Israel war with Gza and he returned to the podium where he began talking slowly while thumbing through a binder as though he was searching for talking points.
Biden, while trying to formulate an answer, then confused the President of Egypt with the President of Mexico.
Rep.Claudia Tenney (R-NY) appears to be the first lawmaker to call for the 25th Amendment to be invoked to remove Biden from office.
Per a FOX News report, Tenney sent a letter to Garland the same night the report came out questioning the lack of prosecution but also about invoking the 25th Amendment. She also called out the DOJ concerning Trump’s case.
Tenney said the DOJ "cannot ethically bring charges against former President Trump because he has mental acuity and a forceful personality, and decline to bring charges against President Biden because of his cognitive decline."
Tenney said Biden "needs to be charged, unless he is not mentally competent to stand trial."
"Candidly, Special Counsel's report makes a reasonable case that he is not," Tenney said.
"Being unable to remember what position he held, and when, is exceptionally concerning. Being unable to remember when one's child died – even within a time frame of several years – is perhaps more a more damning reflection of his mental impairment."
Tenney went on to say that Biden "most seemingly lacks the ability to execute his presidential responsibilities."
"So it is incumbent upon you to explore proceedings to remove the President pursuant to the 25th Amendment to the United States Constitution," Tenney wrote. "President Biden needs to be charged, or he needs to be removed."
Both the report and Tenney’s suggestion of invoking the 25th Amendment follow a recent NBC Poll that shows the majority of Americans, 76%, have issues with Biden’s mental capacity and physical health for a second term.
The breakdown of that 76%: 62% had major concerns and 14% had moderate concerns.
Party breakdown of the question showed 95% of Republicans and 81% of independents have major or moderate concerns about Biden. More than half of Democrats, 54%, also cited major/moderate concerns.
The poll was published on Feb. 6, just days before the Special Counsel’s report.