The special counsel who led the investigation into President Joe Biden’s handling of classified documents cited the president’s “poor memory” as a factor in the decision not to prosecute him.
Nonetheless, Mr. Hur declined to pursue charges against the president, citing a lack of sufficient evidence to establish his guilt “beyond a reasonable doubt” and how he would appear to a jury.
“At trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory,” the special counsel wrote.
“Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him—by then a former president well into his eighties—of a serious felony that requires a mental state of willfulness.”
The report notes that President Biden exhibited a “significantly limited” memory in interviews with investigators and with Mark Zwonitzer, the ghostwriter behind two of his books.
“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,” the report states.
And during his 2023 interview with the special counsel’s office, President Biden’s memory was noticeably 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?’).”
The report also notes that President Biden could not remember, “even within several years,” when his son Beau died, or aspects of the Afghanistan debate “that was so important to him.”
Beau Biden died of brain cancer in 2015 at Walter Reed National Medical Center in Washington. In recent years, the president has frequently misstated the timing and circumstances of his son’s death, often claiming that he died in Iraq, where he served in the Delaware Army National Guard.
“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,” Mr. Hur reasoned.
After the report’s release, President Biden angrily defended himself amid questions about his cognitive ability.
“My memory is fine,” he said amidst intense questioning from the press.
‘Prejudicial and Inflammatory’
The president’s attorneys, though “pleased” by the special counsel’s decision not to prosecute, were less appreciative of his depiction of the president’s memory.“We do not believe that the report’s treatment of President Biden’s memory is accurate or appropriate,” wrote White House special counsel Richard Sauber and the president’s personal attorney, Bob Bauer, in a Feb. 5 letter to Mr. Hur.
“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.”
The attorneys went on to request that Mr. Hur revise his descriptions of the president’s memory—which they characterized as sometimes “prejudicial and inflammatory”—accordingly.
“The report delves into a discussion of the ‘evidence’ of ‘willful’ retention of classified documents, only to acknowledge that there is, in fact, no case of ‘willful’ retention at all,” he said, holding that special counsel’s added commentary served no other purpose than “trashing” the president.
“Based on the facts and the law, the Special Counsel in this case had no choice but to find that criminal charges were not warranted,” Mr. Bauer added. “He had other choices, which should have been guided by the Department’s rules, policies, and practices, and he made the wrong ones.”
