Biden willfully withheld classified docs but will not be charged, special counsel says

Amna Nawaz:

The Justice Department has declined to prosecute President Joe Biden for his handling of classified Obama era documents which were found in his former office in Washington, D.C., and at his home in Delaware.

Geoff Bennett:

In a 345-page report, special counsel Robert Hur wrote — quote — "We conclude that no criminal charges are warranted in this matter."

President Biden offered his first public comments about the report earlier this evening.

Joe Biden , President of the United States: The special counsel acknowledged I cooperated completely, I did not throw up any roadblocks, I sought no delays.

In fact, I was so determined to get the special counsel what they needed, I went forward with a five-hour in-person interview over the two days of October the 9th — 8th and 9th last year, even though Israel had just been attacked by Hamas on the 7th.

I was especially pleased to see the special counsel make clear the stark differences between this case and Donald Trump.

The bottom line is, the special counsel in my case decided against moving forward with any charges. And this matter is now closed.

Geoff Bennett:

Let's bring in Oona Hathaway, a professor at Yale Law School and a former special counsel at the Pentagon.

Thank you for being with us.

So this investigation found that President Biden had willfully retained classified material after finishing his term as vice president and that he had shared sensitive information with a ghostwriter who helped him with his 2017 memoir.

The president isn't facing charges in what would typically be considered a felony. Does this outcome comport with the facts and evidence in the case?

Oona Hathaway, Yale Law School:

I think it does.

I mean, I think that this report is sort of balancing on a very thin line. It concludes, as you say, that, in the opinion of the investigators, that he did act willfully, but it determines that they don't believe that they would be able to persuade the jury of that.

And there are a number of reasons they don't think a jury would be inclined to believe that in fact he behaved willfully. And that's a heightened, intense standard that's necessary to prove a violation of the provisions of law that are at issue here. And so that's why they declined to prosecute.

But it's why the report sort of reads sometimes, like on the one hand, it's saying that he in fact acted in contravention of law, but on the other hand they're declining to prosecute. And that's the distinction here.

Geoff Bennett:

And the separate investigation into Donald Trump's mishandling of classified documents, that resulted in 40 criminal counts against him.

Remind us of the significant differences here, why Donald Trump is being prosecuted and President Biden isn't.

Oona Hathaway:

Well, the main difference here is that, when former President Trump was asked to return these documents by the National Archives several times, he declined.

It was demanded. He again declined. He was told that he was unlawfully retaining classified information and documents. He again declined. And it took a raid of Mar-a-Lago to excavate those documents and bring them back into government custody.

By contrast, when President Biden was notified that he may have retained classified documents, and, in fact, it was his own staff that discovered the possibility that there may have been retained documents initially at his office at the University of Pennsylvania, they disclosed that to the government directly, and then he fully cooperated.

So he — as he said in that clip that you read — or that you played, he sat for a five-hour interview. He opened up his homes for searches. He turned everything over that he had. So that was a very different response. And it suggests that he didn't mean to be intending to be holding this classified information.

And I think the government really took that into account in determining whether they thought that they could persuade a jury that he meant to be unlawfully retaining classified information.

Geoff Bennett:

And, on that point, Oona, the special counsel, Robert Hur, in this case, said that he chose not to bring charges in part because — this is from his report — "Mr. Biden would likely present himself to a jury, as he did during our interview with him, as a sympathetic, well-meaning, elderly man with a poor memory."

Now, in response to this, the White House counsel and the president's personal attorney, Bob Bauer, wrote a letter where they took issue with that. And they said that: "The report uses highly prejudicial language to describe a commonplace occurrence among witnesses, which is a lack of recall after — of years-old events."

This report reads like more than a recitation of facts. Does it cross the line into excess?

Oona Hathaway:

Well, it's interesting.

I mean, the report, when you read it, it's clearly written for a public audience. It's not written like a normal legal document. It's not written in legalese, really. And certainly the beginning summary is written with a kind of audience in mind. It's written with a public audience in mind and certainly with reporters in mind.

And it does characterize some of these events in ways that are kind of striking. That was one of the lines in particular that sort of jumps out. I mean, one way to read that and one way to say that differently would be to say, look, this is many years later, he doesn't remember the exact contents of the documents.

And they go on later to explain that one of the reasons for that may be that, in fact, he may not even have known what documents exactly were removed from his office because he didn't actually pack many of these boxes himself. In fact, very — he didn't really pack any of these boxes himself. And he didn't direct that many of these documents be removed.

And so the extent to which he actually knew some of these classified documents were in his office is hard to determine. And so when they were asking him some of these questions, he wasn't recalling all the details. And that makes it hard to prove, I mean, because you have to show that there was intent, that he knew he had classified documents, that he had removed them, he intentionally retained them, and he knew that in doing so that he was acting unlawfully.

And that's what you have to prove to convince a jury to convict. And I think, rightfully, the special prosecutor here decided that they just didn't have the information that they would need to be able to convince a jury of that.

Geoff Bennett:

Yale Law School Professor Oona Hathaway, thanks so much for your insights. We appreciate it.

Oona Hathaway:

Thanks for having me.