Tipsheet

Biden's Classified Docs Defense Sounds Awfully Familiar

Mia Cathell
Mia Cathell  |  February 09, 2024 4:30 PM

Special Counsel Robert Hur recommended Thursday that no criminal charges be brought against President Joe Biden following a yearlong investigation into the commander-in-chief's mishandling of classified documents. Conversely, Special Counsel Jack Smith's probe concluded with former President Donald Trump being charged with a slew of felonies filed on similar grounds.

When confronted, Biden's and Trump's defenses were strikingly similar, but the outcomes varied vastly.

Biden told investigators that he believed notebooks containing classified information found in his possession were "my property."

U.S. Department of Justice | Hur report

Trump described material on his property as "my boxes," according to the June 2023 indictment, which depicts Trump trying to stop a lawyer he had hired from helping him search Mar-a-Lago for any classified documents that he may still possess on-site.

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"I don't want anybody looking through my boxes," Trump is quoted saying, as alleged by a Trump attorney, expressing a belief in personal ownership over the material. "I really don't," Trump allegedly added. "I don't want you looking through my boxes."

U.S. Department of Justice | Trump indictment

Biden was let off the hook despite Hur's investigation uncovering a trove of implicating evidence. However, the damning evidence discovered "does not prove beyond a reasonable doubt that Mr. Biden willfully retained the notebooks," Hur's 388-page report states. "We do not believe this evidence would meet the government's burden at trial to prove Mr. Biden knew his handling of the notebooks broke the law. We expect Mr. Biden's defense would be that he thought his notebooks were his personal property and that he was allowed to take them home after his vice presidency, even if they contained classified information," the report reads.

Prosecutors say Biden could have plausibly believed that the notebooks—kept in unlocked drawers at his Delaware home—he used as vice president were his "personal property" and belonged to him, even if the contents stored highly sensitive information.

  

U.S. Department of Justice | Hur report

If he were to be tried, the prosecution expects Biden to offer evidence of his "subjective understanding."

"We do not, however, believe this evidence would meet the government's burden at trial—particularly the requirement to prove that Mr. Biden intended to do something the law forbids [...] we expect Mr. Biden's defense at trial would be that he thought his notebooks were his personal property and he was allowed to take them home [...] Contemporaneous evidence suggests that when Mr. Biden left office in 2017, he believed he was allowed to keep the notebooks in his home," the investigators determined.

The prosecutors concluded, "[W]e believe he was mistaken about what the law permits," pointing to President Ronald Reagan as a historical example, which Biden cited during questioning. Reagan left the White House in 1989 with eight years' worth of handwritten diaries, which he appears to have kept at his California home, even though they contained top-secret information, the special counsel's report says. Amid criminal litigation involving a former Reagan administration official in 1989 and 1990, the U.S. Department of Justice stated in public court filings that the "currently classified" diaries were Reagan's "personal records."

"Yet we know of no steps the Department or other agencies took to investigate Mr. Reagan for mishandling classified information or to retrieve or secure his diaries. Most jurors would likely find evidence of this precedent and Mr. Biden's claimed reliance on it, which we expect would be admitted at trial, to be compelling evidence that Mr. Biden did not act willfully," the prosecutors argued.

Biden repeated this argument in his written answers to the special counsel's questions:

"Like presidents and vice presidents before me, I understand these notes to be my personal property," Biden wrote in response.

U.S. Department of Justice | Hur report

During an interview with investigators, Biden was "emphatic," declaring that his notebooks were "my property" and that "every president before me has done the exact same thing," that is—retained handwritten classified materials after leaving office.

"They are mine," Biden said of the notebooks. Then, he declined to answer several questions about whether he believed his notes contained classified information, whether he believed he was authorized to possess classified information after his vice presidency, and whether he took steps to avoid writing classified information in his notebooks, according to the report's findings.

In Biden's case, he was considered not mentally competent to stand trial and too senile to criminally charge. Before a jury, Biden would likely present himself as "a sympathetic, well-meaning elderly man with a poor memory," the prosecutors assessed.

Meanwhile, Trump, the presumptive GOP nominee and Biden's likely 2024 opponent, was hit with 37 felony charges.

As vice president, Biden regularly wrote notes by hand on classified subjects, including the president's daily brief and National Security Council meetings. Some of the notebooks were used as reference material for Biden's 2017 memoir, Promise Me, Dad.

U.S. Department of Justice | Hur report

Evidence shows that Biden nevertheless knew the notebooks contained classified information. Biden wrote down "obviously sensitive information" discussed during intelligence briefings with President Barack Obama and meetings in the White House Situation Room about matters of national security, the military, and foreign policy. While reading his notebook entries aloud in meetings with his ghostwriter, Biden "sometimes skipped over presumptively classified material and warned his ghostwriter the entries might be classified," but at least three times Biden read from classified entries aloud to his ghostwriter "nearly verbatim."

According to the scathing report, some evidence also suggests Biden knew he could not keep classified handwritten notes at home post-administration. Biden, who had decades of experience with classified information, was "deeply familiar with the measures taken to safeguard classified information and the need for those measures to prevent harm to national security."

Back in September 2022, when asked by 60 Minutes about Trump keeping classified documents at his Mar-a-Lago estate, Biden chided "how that could possibly happen" and "how anyone could be that irresponsible." Hur's report mentions Biden's remarks.

Trump, who is younger than 81-year-old Biden by three-plus years, fumed about there being a double standard in the U.S. legal system, as he prepares to head trial over similar allegations beginning on May 20. "THIS HAS NOW PROVEN TO BE A TWO-TIERED SYSTEM OF JUSTICE AND UNCONSTITUTIONAL SELECTIVE PROSECUTION!" Trump responded in an official statement, demanding the DOJ to "immediately" drop all charges against him in the wake of Hur's decision. The charges Trump is facing include willful retention of national defense information, conspiracy to obstruct justice, and making false statements.

"The Biden Documents Case is 100 times different and more severe than mine [..] What Biden did is outrageously criminal – He had 50 years of documents, 50 times more than I had, and 'WILLFULLY RETAINED’ them," Trump wrote Thursday afternoon.