The Feeble Old Man is Innocent
Segment # 113
Special counsel Hur made a plausible case for not charging President Biden in his mishandling of classified material. What most observers should be most concerned about is first Biden’s total refusal to admit quilt and take responsibility for clearly was a violation of the law. Hur clearly stated that Biden not only was not truthful in all his responses but also that Biden was not exonerated by the report. Biden had classified material in six unauthorized locations. Biden had classified material that could never have been removed or declassified by anyone other than a President. Some of the documents date back decades to his career as a senator. This part of the investigation is truly black and white and there is no equivocation with extenuating circumstances. Biden is guilty. And by degree the Biden case is far more serious that the Trump Mar a Lago. If our DOJ was truly impartial, they would have immediately dropped the case yesterday after the Congressional hearing with Hur. By that is not the way we conduct business
What we know as fact as revealed below in Hur’s Executive Summary and Report
Did Biden possess and store classified documents he could not legally possess? YES
Was Biden untruthful in his deposition with Hur? YES
Did ghostwriter Mark Zwonitzer have the clearance to see Biden classiied docs? NO
Did ghostwriter attempt to delete classided docs after the inestigation was announced? YES
Did Bide knowingly share classified material with ghostwriter Zwonitzer? YES
After 50 years of public life was Biden aware that he was mishandling classified material? YES
Did Hur state that there is clear evidence that Biden wilfully retained classified material? YES
Was Biden aware that classied material was improperly stored? YES
Biden was not charged because he appeared to be “a sympathetic, well-meaning, elderly man with a poor memory”? YES
Keep this in mind when you look at the DOJ charges against Trump for possessing classified documents that he was entitled to as President. The Biden case is clearly much more egregious.
Special counsel Robert Hur says he ‘did not exonerate’ Biden, claims president lied about sharing, locking classified docs
By
Social Links for Steven Nelson
Published March 12, 2024, 6:29 p.m. ET
WASHINGTON — Former special counsel Robert Hur told lawmakers Tuesday that his report on President Biden’s alleged mishandling of classified documents “did not exonerate” Biden of wrongdoing and that the commander-in-chief and his defenders were misleading the public about key details in the case.
“I did not exonerate him and that word does not appear in the report,” Hur corrected Rep. Pramila Jayapal (D-Wash.) during a five-hour-long House Judiciary Committee hearing on Capitol Hill.
Jayapal, the influential chairwoman of the Congressional Progressive Caucus, spoke over Hur as he corrected her before she cut him off by saying, “Mr. Hur, it’s my time. Thank you.”
EXECUTIVE SUMMARY
We conclude that no criminal charges are warranted in this matter. 1 We would
reach the same conclusion even if Department of Justice policy did not foreclose
criminal charges against a sitting president. 2
Our investigation uncovered evidence that President Biden willfully retained
and disclosed classified materials after his vice presidency when he was a private
citizen. These materials included (1) marked classified documents about military and
foreign policy in Afghanistan, and (2) notebooks containing Mr. Biden's handwritten
entries about issues of national security and foreign policy implicating sensitive
intelligence sources and methods. FBI agents recovered these materials from the
garage, offices, and basement den in Mr. Biden's Wilmington, Delaware home.
However, for the reasons summarized below, we conclude that the evidence
does not establish Mr. Biden's guilt beyond a reasonable doubt. Prosecution of Mr.
Biden is also unwarranted based on our consideration of the aggravating and
mitigating factors set forth in the Department of Justice's Principles of Federal
Prosecution. For these reasons, we decline prosecution of Mr. Biden.
* * *
The classified documents and other materials recovered in this case spanned
Mr. Biden's career in national public life. During that career, Mr. Biden has long seen
1 We submit this report to the Attorney General pursuant to 28 C.F.R. § 600.S(c),
which states that, "[a]t the conclusion of the Special Counsel's work, he or she shall provide
the Attorney General a confidential report explaining the prosecution or declination decisions
reached by the Special Counsel."
2 A Sitting President's Amenability to Indictment and Criminal Prosecution, 24 Op.
O.L.C. 222, 260 (2000).
1
himself as a historic figure. Elected to the Senate at age twenty-nine, he considered
running for president as early as 1980 and did so in 1988, 2008, and 2020. He believed
his record during decades in the Senate made him worthy of the presidency, and he
collected papers and artifacts related to significant issues and events in his career.
He used these materials to write memoirs published in 2007 and 2017, to document
his legacy, and to cite as evidence that he was a man of presidential timber.
In 2009, then-Vice President Eiden strongly opposed the military's plans to
send more troops to Afghanistan. U.S. policy in Afghanistan was deeply important to
Mr. Eiden, and he labored to dissuade President Obama from escalating America's
involvement there and repeating what Mr. Eiden believed was a mistake akin to
Vietnam. Despite Mr. Biden·s advice, President Obama ordered a surge of additional
U.S. troops, and Mr. Biden's views endured sharp criticism from others within and
outside of the administration. But he always believed history would prove him right.
He retained materials documenting his opposition to the troop surge, including a
classified handwritten memo he sent President Obama over the 2009 Thanksgiving
holiday, and related marked classified documents. FBI agents recovered these
materials from Mr. Biden's Delaware garage and home office in December 2022 and
January 2023.
Also, during his eight years as vice president, Mr. Eiden regularly wrote notes
by hand in notebooks. Some of these notes related to classified subjects, including the
President's Daily Brief and National Security Council meetings, and some of the
notes are themselves classified. After the vice presidency, Mr. Biden kept these
2
classified notebooks in unsecured and unauthorized spaces at his Virginia and
Delaware homes and used some of the notebooks as reference material for his second
memoir, Promise Me, Dad, which was published in 2017. To our knowledge, no one
has identified any classified information published in Promise Me, Dad, but Mr.
Biden shared information, including some classified information, from those
notebooks with his ghostwriter. FBI agents recovered the notebooks from the office
and basement den in Mr. Biden's Delaware home in January 2023.
* * *
Marked classified documents about Afghanistan. These documents from
fall 2009 have classification markings up to the Top Secret/Sensitive Compartmented
Information level. They were found in a box in Mr. Biden's Delaware garage that
contained other materials of great personal significance to him and that he appears
to have personally used and accessed. The marked classified documents were found
along with drafts of the handwritten 2009 Thanksgiving memo Mr. Biden sent
President Obama in a last-ditch effort to persuade him not to send additional troops
to Afghanistan. These materials were proof of the stand Mr. Biden took in what he
regarded as among the most important decisions of his vice presidency.
Mr. Biden wrote his 2007 and 2017 memoirs with the help of a ghostwriter. In
a recorded conversation with his ghostwriter in February 2017, about a month after
he left office, Mr. Biden said, while referencing his 2009 Thanksgiving memo, that he
had "just found all the classified stuff downstairs." At the time, he was renting a home
in Virginia, where he met his ghostwriter to work on his second memoir. Downstairs
from where they met was Mr. Biden's office, where he stored his papers. He moved
3
out of the Virginia home in 2019, consolidating his belongings in Delaware-where
FBI agents later found marked classified documents about the Afghanistan troop
surge in his garage.
Evidence supports the inference that when Mr. Eiden said in 2017 that he had
"just found all the classified stuff downstairs" in Virginia, he was referring to the
same marked classified documents about Afghanistan that FBI agents found in 2022
in his Delaware garage.
Nevertheless, we do not believe this evidence is sufficient, as jurors would
likely find reasonable doubt for one or more of several reasons. Both when he served
as vice president and when the Afghanistan documents were found in Mr. Biden's
Delaware garage in 2022, his possession of them in his Delaware home was not a
basis for prosecution because as vice president and president, he had authority to
keep classified documents in his home. The best case for charges would rely on Mr.
Biden's possession of the Afghanistan documents in his Virginia home in February
2017. when he was a private citizen and when he told his ghostwriter he had just
found classified materiaL
Several defenses are likely to create reasonable doubt as to such charges. For
example, Mr. Eiden could have found the classified Afghanistan documents at his
Virginia home in 2017 and then forgotten about them soon after. This could convince
some reasonable jurors that he did not retain them willfully. \Vhen Mr. Eiden told
his ghostwriter about finding ''all the classified stuff downstairs," his tone was
matter-of-fact. For a person who had viewed classified documents nearly every day
4
for eight years as vice president, including regularly in his home, finding classified
documents at home less than a month after leaving office could have been an
unremarkable and forgettable event. Notably, the classified Afghanistan documents
did not come up again in Mr. Biden's dozens of hours of recorded conversations with
the ghostwriter, or in his book. And the place where the Afghanistan documents were
eventually found in Mr. Biden's Delaware garage-in a badly damaged box
surrounded by household detritus-suggests the documents might have been
forgotten.
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.
Another viable defense is that Mr. Eiden might not have retained the classified
Afghanistan documents in his Virginia home at all. They could have been stored, by
mistake and without his know ledge, at his Delaware home since the time he was vice
president, as were other classified documents recovered during our investigation.
This would rebut charges that he willfully retained the documents in Virginia.
Given Mr. Biden's limited precision and recall during his interviews with his
ghostwriter and with our office, jurors may hesitate to place too much evidentiary
weight on a single eight-word utterance to his ghostwriter about finding classified
5
documents in Virginia, in the absence of other, more direct evidence. We searched for
such additional evidence and found it wanting. In particular, no witness, photo, e
mail, text message, or any other evidence conclusively places the Afghanistan
documents at the Virginia home in 2017.
In addition to this shortage of evidence, there are other innocent explanations
for the documents that we cannot refute. When Mr. Eiden told his ghostwriter he
"just found all the classified stuff downstairs," he could have been referring to
something other than the Afghanistan documents, and our report discusses these
possibilities in detail.
We have also considered that, at trial, Mr. Eiden 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. 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.
We conclude the evidence is not sufficient to convict, and we decline to
recommend prosecution of Mr. Eiden for his retention of the classified Afghanistan
documents.
* * *
Notebooks containing classified information. FBI agents recovered from
unlocked drawers in the office and basement den of Mr. Biden's Delaware home a set
6
of notebooks he used as vice president. Evidence shows that he knew the notebooks
contained classified information. Mr. Eiden wrote down obviously sensitive
information discussed during intelligence briefings with President Obama and
meetings in the White House Situation Room about matters of national security and
military and foreign policy. And while reading his notebook entries aloud during
meetings with his ghostwriter, Mr. Eiden sometimes skipped over presumptively
classified material and warned his ghostwriter the entries might be classified, but at
least three times Mr. Eiden read from classified entries aloud to his ghostwriter
nearly verbatim.
Some evidence also suggests Mr. Eiden knew he could not keep classified
handwritten notes at home after leaving office. Mr. Eiden, 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. Asked about reports that former President Trump had kept
classified documents at his own home, Mr. Eiden wondered how "anyone could be that
irresponsible" and voiced concern about "[w]hat data was in there that may
compromise sources and methods." \Vhile vice president, he kept his notebooks in a
White House safe for a time, in contrast with his decision after leaving office to keep
them at home in unlocked drawers.
When Mr. Eiden left office, he also knew his staff decided to store notecards
containing his classified notes in a Secure Compartmented Information Facility
(SCIF) at the National Archives, and he knew his notebooks contained the same type
7
of classified information. As he told his ghostwriter during a recorded interview, the
same staff who arranged to secure his classified notecards "didn't even know" he had
retained possession of his classified notebooks. Twice in 2017, Mr. Eiden visited the
National Archives SCIF to review his classified notecards while writing his book. Yet
he kept his notebooks, which also contained classified information, in unlocked
drawers at home. He had strong motivations to do so and to ignore the rules for
properly handling the classified information in his notebooks. He consulted the
notebooks liberally during hours of discussions with his ghostwriter and viewed them
as highly private and valued possessions with which he was unwilling to part.
\Ve do not, however, believe this evidence would meet the government's burden
at trial~particularly the requirement to prove that Mr. Eiden intended to do
something the law forbids. Consistent with statements Mr. Eiden made during our
interview of him and arguments made by the White House Counsel and Mr. Biden's
personal counsel, we expect Mr. Eiden's defense at trial would be that he thought his
notebooks were his personal property and he was allowed to take them home, even if
they contained classified information. During our interview of him, Mr. Eiden was
emphatic, declaring that his notebooks are "my property" and that "every president
before me has done the exact same thing," that is, kept handwritten classified
materials after leaving office. Ho also cited the diaries that President Reagan kept in
his private home after leaving office, noting that they included classified information.
Contemporaneous evidence suggests that when Mr. Eiden left office in 2017,
he believed he was allowed to keep the notebooks in his home. In a recorded
8
conversation with his ghostwriter in April 2017, Mr. Eiden explained that, despite
his staffs views to the contrary, he did not think he was required to turn in his
note cards to the National Archives-where they were stored in a SCIF-and he had
not wanted to do so. At trial, he would argue plausibly that he thought the same about
his note books.
If this is what Mr. Eiden thought, we believe he was mistaken about what the
law permits, but this view finds some support in historical practice. The clearest
example is President Reagan, who 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. During criminal litigation
involving a former Reagan administration official in 1989 and 1990, the Department
of Justice stated in public court filings that the "currently classified" diaries were Mr.
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. Eiden's claimed reliance on it, which we expect would be admitted at trial,
to be compelling evidence that Mr. Eiden did not act willfully.
As with the marked classified documents, because the evidence is not sufficient
to convict Mr. Eiden for willfully retaining the notebooks, we decline prosecution.
We also considered whether Mr. Eiden willfully disclosed national defense
information to his ghostwriter by reading aloud certain classified notebook passages
to the ghostwriter nearly verbatim on at least three occasions. Mr. Eiden should have
9
known that by reading his unfiltered notes about classified meetings in the Situation
Room, he risked sharing classified information with his ghostwriter. But the evidence
does not show that when Mr. Biden shared the specific passages with his ghostwriter,
Mr. Biden knew the passages were classified and intended to share classified
information. Mr. Biden's lapses in attention and vigilance demonstrate why former
officials should not keep classified materials unsecured at home and read them aloud
to others, but jurors could well conclude that Mr. Biden's actions were unintentional.
We therefore decline to charge Mr. Eiden for disclosure of these passages to his
ghostwriter.
Principles of Federal Prosecution. \Ve have also evaluated ·'all relevant
considerations" in aggravation and mitigation, as outlined in the Justice Manual, and
determined that on balance, these factors do not support prosecution of Mr. Biden.:1
Historically, after leaving office, many former presidents and vice presidents
have knowingly taken home sensitive materials related to national security from
their administrations without being charged with crimes. This historical record is
important context for judging whether and why to charge a former vice president
and former president, as Mr. Eiden would be when susceptible to prosecution-for
similar actions taken by several of his predecessors.
With one exception, there is no record of the Department of Justice prosecuting
a former president or vice president for mishandling classified documents from his
3 U.S. Dep't of Just., Just. Manual§§ 9-27.001, 9-27.220. 9-27.230 (2023).
10
own administration. The exception is former President Trump. It is not our role to
assess the criminal charges pending against Mr. Trump, but several material
distinctions between Mr. Trump's case and Mr. Biden's are clear. Unlike the evidence
involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if
proven, would present serious aggravating facts.
Most notably, after being given multiple chances to return classified
documents and avoid prosecution, Mr. Trump allegedly did the opposite. According
to the indictment, he not only refused to return the documents for many months, but
he also obstructed justice by enlisting others to destroy evidence and then to lie about
it. In contrast, Mr. Eiden turned in classified documents to the National Archives and
the Department of Justice, consented to the search of multiple locations including his
homes, sat for a voluntary interview. and in other ways cooperated with the
investigation.
In reaching our decision, we did not consider every circumstance m which
criminal charges against a former president or vice president for mishandling
classified information may be warranted. But on the facts of this case, "the
fundamental interests of society" do not "require" criminal charges against Mr.
Eiden.~ For this additional reason, applying the Principles of Federal Prosecution set
forth in the Justice Manual, we decline prosecution.
The practices of retaining classified material m unsecured locations and
reading classified material to one's ghostwriter present serious risks to national
4 U.S. Dep't of Just., Just. Manual§§ 9-27.001, 9-27.220 (2023).
11
security, given the vulnerability of extraordinarily sensitive information to loss or
compromise to America's adversaries. The Department routinely highlights such
risks when pursuing classified mishandling prosecutions. But addressing those risks
through criminal charges, the only means available to this office, is not the proper
remedy here.
* * *
Other classified materials. For other recovered classified documents, after
a thorough investigation the decision to decline criminal charges was
straightforward. The FBI recovered additional marked classified documents at the
Penn Eiden Center, elsewhere in Mr. Biden's Delaware home, and in collections of
his Senate papers at the University of Delaware, but the evidence suggests that Mr.
Eiden did not willfully retain these documents and that they could plausibly have
been brought to these locations by mistake. We also investigated whether persons
other than Mr. Eiden knowingly mishandled these classified documents, and our
investigation showed that they did not. In reaching these conclusions, we note the
numerous previous instances in which marked classified documents have been
discovered intermixed with the personal papers of former Executive Branch officials
and members of Congress.
* * *
Mr. Biden's ghostwriter and destruction of evidence. After learning of the
special counsel's appointment in this matter, Mr. Biden's ghostwriter deleted audio
recordings he had created of his discussions with Mr. Eiden during the writing of Mr.
Biden's 2017 memoir. The recordings had significant evidentiary value.
12
After telling the Special Counsel's Office what he had done, the ghostwriter
turned over his computer and external hard drive and consented to their search.
Based on the FBI's analysis. it appears the FBI recovered all deleted audio files
relating to the memoir, though portions of a few of the files appear to be missing,
which is possible when forensic tools are used to recover deleted files. The ghostwriter
kept, and did not delete or attempt to delete, his near-verbatim transcripts of the
recordings and produced those transcripts to us, including for each of the incomplete
recovered files.
\Ve considered whether to charge the ghostwriter with obstruction of justice,
but we believe the evidence would be insufficient to obtain a conviction and therefore
declined to prosecute him.
While the ghostwriter admitted that he deleted the recordings after he learned
of the special counsel's investigation, the evidence falls short of proving beyond a
reasonable doubt that he intended to impede an investigation, which is the intent
required by law. In his interviews, the ghostwriter offered plausible, innocent reasons
for why he deleted the recordings. He also preserved his transcripts that contain some
of the most incriminating information against Mr. Eiden-including his statement
about finding "all the classified stuff downstairs" in 2017-which is inconsistent with
an intent to impede an investigation by destroying evidence. And the ghostwriter
voluntarily produced to investigators his notes and the devices from which the
recordings were recovered.
13
For these reasons, we believe that the admissible evidence would not suffice to
obtain a conviction of the ghostwriter for obstruction of justice. On balance, relevant
aggravating and mitigating factors also not support his prosecution.
