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Why the Special Counsel Who Investigated Biden's Classified Documents Case Decided Not to Bring Charges?

By Rafael Olavarría | February 14th, 2024

On February 8, 2024, the report of Robert Hur, the special prosecutor in charge of investigating the case of classified documents from when Joe Biden was a senator (1973-2009) and then vice president (2009-2017), was published.

Hur researched files that were found by Biden's own legal team at the president's private residence in Wilmington, Delaware, in a closet in an empty office at the University of Pennsylvania in Washington, D.C. (which Biden used from mid-2017 until the start of his presidential campaign in 2020) and at the University of Delaware (where documents from when Biden was a senator were kept).

Hur concluded that the investigation disclosed no evidence that could prove "beyond a reasonable doubt" that Biden intentionally withheld and disclosed classified information. The prosecutor stresses that, in order to file criminal charges, evidence is needed to show that the person acted "with intent to violate the law."

In the case of the documents found in the garage of his Wilmington home, the investigation noted that Biden may not have known those files were there because his team may have mistakenly saved them, without him knowing.

Among the classified files investigated by the special counsel were documents from former President Barack Obama's administration related to Afghanistan, as well as handwritten notes from Biden also related to Afghanistan. There was also information related to Iran's nuclear capabilities (as part of the Obama administration's nuclear deal negotiations with Iran) and data about a 2015 call between Biden and Ukraine's then-prime minister, who at the time was Arseniy Yatsenyuk.

The special counsel details in his report the differences between the case of Biden's classified documents and the case of Trump's classified documents

"Having had multiple opportunities to return the classified documents and avoid criminal charges, Mr. Trump allegedly did the opposite. According to the indictment, [Trump] not only refused to return the documents for several months, but also obstructed justice by involving others to destroy evidence and lie about it," Hur states in the report.

The special counsel continues: "Biden, by contrast, turned over the classified documents to the National Archives and the Department of Justice, allowed a search to be conducted at various locations, including their homes, participated in a voluntary interview, and cooperated with the investigation in other ways as well."

The special prosecutor appointed for Trump's case is Jack Smith and here you can read in detail the criminal indictment that the former president faces for the case of classified documents at Mar-a-Lago. We have already explained the differences between the two cases in Factchequeado.

Investigators found "top secret" documents

President Biden held a press conference on February 8, 2024, after the Hur report was released.

While taking questions from reporters, Biden said at 8:14: "None of that was highly classified. I didn't have any of that red stuff on me, you know what I mean, the thing that goes around corners. I didn't have any of that." Let's divide this president's response into 2 parts.

First, according to Attorney General Hur's investigation, several of the documents were marked "top secret," the highest level of classification within the U.S. government due to the damage that their disclosure could cause to national security.

Starting on page 350 of the report, a list of each document appears with the classification level it had at the time and, next to it, the classification level it currently has. According to the special counsel, this was done after a review of each document by different agencies of the federal government in coordination with the office of the Director of National Intelligence.

On that list are more than a dozen files that were already marked as "top secret," and currently still have the highest level of classification.

The report also includes images of documents A5 and A6, showing the word "TOP SECRET" at the top of the page and a red label in the upper right corner with the word "sensitive."

Second: Regarding the comment about "the red thing" that goes on top of the documents, Factchequeado consulted the White House and they responded by email that the president was referring to the cover sheets that are used to alert that the content of a document is classified and what its classification level is.

In Hur's report, similar to what Biden claimed, it is pointed out on several occasions that there were documents found in the investigation that did not have covers that warned that the content was classified. However, Gary Ross, director of Intelligence Studies at Texas A&M University, told PolitiFact, a media partner of Factchequeado, that "just because a document doesn't have a cover, doesn't mean it's not classified." But, given the conclusion reached by the prosecutor, the fact that they did not have a "Secret" or "Top Secret" cover may explain why Biden did not know that they were.

In Factchequeado we only found 1 document that, according to the investigation, did have a cover that said "Secret" but was from the Senate Foreign Relations Committee and, according to the report, that mark "is not necessarily a national security classification" because it is a document of the legislative branch.In Factchequeado we only found 1 document that, according to the investigation, did have a cover that said "Secret" but was from the Senate Foreign Relations Committee and, according to the report, that mark "is not necessarily a national security classification" because it is a document of the legislative branch.

Hur's comments on Biden's memory

In the same report where he concludes that Biden does not deserve to be criminally prosecuted, Hur, appointed as federal prosecutor in 2017 by then-President Trump, expresses his opinion on the memory of the president of the United States on at least 5 occasions. In part, it states that the president appears to be an "elderly, kind, well-intentioned man with a poor memory."

It also says that Biden's (who is 81) memory was "pretty limited" during the interviews. Elsewhere in the report, it adds that Biden "appears to have significant limitations in his memory." On other pages, he refers to Biden's memory as "fuzzy" and "flawed," as the president would not have remembered exactly when his son Beau Biden passed away and the exact period in which he was vice president.

However, experts agree that forgetting the names of acquaintances or having difficulty remembering dates in the past can be part of normal aging, does not have to be a sign of a serious cognitive problem, and that in order to make a diagnosis, it would be necessary for the president to undergo a full evaluation by a specialist.

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