The President’s behavior deserves criticism, even if it’s not criminal and less bad than that of the former president.
Sure, the facts alleged in Robert Hur’s report about President Biden’s handling of classified information are not nearly as bad as the facts alleged in the South Florida indictment of former President Trump. Yes, the differences are immense. They are a wholly persuasive rationale for the starkly different outcomes—Trump facing charges, Biden not—and these different outcomes emphatically do not a reflect a double standard or a weaponized justice system deployed against Trump or conservatives. And to be sure, unlike in the Trump case, the evidence Hur amassed as to Biden’s conduct is not dispositive.
In the days since the report became public on Feb. 8, the press has focused largely on the investigator’s conclusions regarding Biden’s memory making a prosecution’s success unlikely. But Hur also identifies a number of other evidentiary deficiencies in any hypothetical case he might endeavor to bring. He is candid that there is not proof beyond a reasonable doubt that Biden willfully retained or disseminated classified material during his period as a private citizen between his vice presidency and his presidency.
All of which has led some commentators to treat Hur’s report as some kind of vindication for Biden. And it has led many more to consider it almost wholly in terms of the political impact of its occasional comments on Biden’s memory.
This is a mistake.
Taken on its own, the Hur report presents an upsetting account of Biden’s behavior—one that deserves attention because Biden’s alleged conduct is bad. It is worse, for example, than the conduct the FBI found in its investigation of Hillary’s Clinton’s use of a private email server. It does not appear to reflect mere sloppiness, but—rather—a kind of arrogant ignoring of the rules for reasons of personal convenience and self-regard. To dismiss such behavior as not-as-bad-as-Trump’s is to trivialize it in a fashion that does a disservice to the countless individuals who actually follow the rules and don’t keep at home highly classified information they believe vindicate their policy arguments, or use such material to write memoirs and read it aloud to their ghostwriters.
Hur is correct that there is reasonable doubt that this is what Biden did. And Hur is thus also correct to have forgone charges. And some of what Biden did, being consistent with the behavior of past presidents, suggests more of a policy problem than personal misconduct on Biden’s part. But some of what Biden did is clearly on Biden. And that includes storing a significant volume of classified material at his home, not returning it when he discovered he had it, and sharing some of it with his ghostwriter. Biden deserves criticism not for his memory but for this conduct.
What Biden Likely Did
We will forgo a detailed summary of the nearly 400-page Hur report, which attempts a forensic history of how a significant volume of classified material from Biden’s vice presidency and his years in the Senate ended up in his home and in the offices of the Penn Biden Center in Washington.
For present purposes, the essential facts are these:
-
A cache of classified material concerning the debate over the 2009 Afghanistan surge was discovered in 2022 and 2023 in Biden’s garage and office in Delaware. These included a 40-page handwritten memo to Obama opposing the surge.
-
Biden was recorded by his ghostwriter—who, Biden knew, never held a security clearance—in 2017 declaring that he had found a lot of classified material in his basement office at his rental home in Virginia relevant to their discussion about the surge debate. The material found in 2022 in Biden’s garage in his Delaware home corresponds closely to the material he appeared to be describing in that recorded conversation.
-
Biden, throughout his vice presidency, also kept notebooks, which he filled with personal observations, some of which included highly classified material. At the end of his time in office he retained these notebooks—telling the special counsel’s office that he understood the notebooks “to be [his] personal property.”
-
During his interviews with his ghostwriter, he read large segments of these notebooks aloud, including classified material. Sometimes he skipped over classified segments; sometimes he didn’t.
-
In his recorded conversations with his ghostwriter, Biden periodically referred to material he was describing as “classified”—implying that he was aware not merely that he possessed such material but was aware that he was disclosing it to a person not authorized to receive it. According to the report, Biden, at times, “read his notes from classified meetings to [the writer] nearly word-for-word.”
-
The total volume of classified material was significant. According to Appendices A and B of the report, the special counsel discovered approximately 75 classified documents in President Biden’s possession and more than 100 pages of classified material from the notebooks Biden had taken with him.
Before comparing Biden’s alleged conduct to that of Trump, let’s pause a moment to compare it to two other high-profile public figures whose handling of classified material landed them a criminal investigation: Gen. David Petraeus and Hillary Clinton.
Biden’s probable conduct is objectively worse than Clinton’s. Clinton, according to the much-derided summary of the investigative findings offered in 2016 by then-FBI Director James Comey, exchanged emails that contained classified material on her private email server. Her conduct was “extremely careless” but did not involve any intentional retention or disclosure of classified information. Neither she nor her staff was using the material for any personal purposes. They were doing work. Comey’s ultimate conclusion was that, “we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information.”
Biden’s case actually bears some similarity to that of Petraeus, who ultimately pled to a misdemeanor charge for mishandling classified information. In the Petraeus case, as with Biden, the material in question involved notebooks of classified information that were knowingly disclosed to a biographer with apparently specific knowledge that they contained classified materials. Petraeus’s conduct was clearly worse than Biden’s; Biden did not actually turn over his notebooks to his ghostwriter, whereas Petraeus did so. And the notebooks Petraeus handed over to his biographer, with whom he was also having an affair, contained covert officers’ identities, information regarding war strategy, National Security Council deliberations, and code words related to secret intelligence programs. Petraeus told the biographer in a recorded conversation—approximately three weeks before giving her the journals—that some of the journals were “highly classified.” And he also falsely told the FBI that he had never provided classified information to her.
Yet as with Petraeus’s case, Biden’s behavior appears to have involved the sharing of classified material from notebooks for reasons of personal promotion.
Hur compares the two cases in his report. He states that “[t]here are significant similarities between Petraeus’s case and Mr. Biden’s, but the differences are more significant.” Hur identifies three principal distinctions between the two cases. First, Petraeus’s retention of classified information “violated numerous nondisclosure agreements he signed” as a Defense Department employee, whereas Biden did not sign these agreements. Second, while Petraeus lied to FBI agents about disclosing classified information, Biden initiated the investigation into his conduct by proactively disclosing his retention of classified information and consistently cooperated with the Justice Department and special counsel’s office. Third, Petraeus’s lies suggest that he recognized that his conduct was impermissible; Biden, in contrast, “asserted his rightful ownership of his notebooks based on a long history of former presidents and vice presidents retaining diaries, notes, and other writings that contained classified information.” And the special counsel writes that despite these characteristics of the Petraeus case that elevate the seriousness of his conduct, “Petraeus was charged only with a misdemeanor violation of 18 U.S.C. § 1924”—which is not applicable to Biden’s case.
Why There Is Reasonable Doubt
Hur’s decision not to bring charges against Biden was clearly correct. The reasons are both evidentiary and prudential. As the evidentiary difficulties with any case are prohibitive, let’s begin there.
First, Hur candidly acknowledges that there are innocent explanations for Biden’s conduct, explanations that he cannot rule out and that might be persuasive to reasonable jurors. With respect to the Afghanistan documents found in Biden’s garage and which Biden announced to his ghostwriter were found in the basement, for example, it is possible that these are not the same material. It is also possible that the reason Biden did not return them is that he forgot about them shortly after finding them. This would, if true, negate a finding of “willful” retention.
With respect to the notebooks, which Biden far more clearly retained consciously, Hur finds Biden has a plausible explanation. Prior presidents, most particularly Ronald Reagan, had famously retained personal notebooks with classified material, and the Justice Department had in various court filings acknowledged them as the personal property of the individual, not the illegally purloined property of the United States. While Hur appears to regard this as an error, it would be very wrong for the Justice Department to prosecute one former president for acts indistinguishable from another former president’s position the department itself had accepted.
With respect to Biden’s disclosure of material from those notebooks to his ghostwriter, Hur finds that the fact that Biden often skipped over classified passages and did not disclose sensitive material makes it plausible that his slip-ups were accidents, not willful disclosures.
And then there’s the issue of Biden’s memory. Biden and his team are angry that Hur includes sporadic references to Biden’s memory slip-ups both in his 2017 interviews with the ghostwriter and in his lengthy two-day interview with the special counsel’s team. Many commentators have portrayed these references as gratuitous political shots at the president that hit him on a point of political weakness in the middle of an election campaign.
The merits here are at least a little bit complicated because willfulness is, after all, an element of the offenses in question—something that has to be proven to a jury beyond a reasonable doubt. To the extent Biden slips up over names, dates, and facts on a routine basis—which he does—that is a factor that a defense team would legitimately exploit and that a jury may well find persuasive. As Chuck Rosenberg argued on Feb. 9,
If Hur was going to tell the attorney general that he declined to prosecute President Biden, then I believe he was also obligated to explain his rationale. The very nature of the decision to decline to prosecute includes Hur’s assessment of the putative defendant (Biden) and how Biden would fare at a criminal trial, including in front of a jury, if he chose to take the stand. Would Biden come across as forgetful? As sympathetic? As willful? As dissembling? As honest? These are crucial determinations prosecutors make all the time about witnesses and defendants. Indeed, I cannot imagine writing a report to the attorney general and not including these assessments.
The trouble arises because while this document is not meant as a public report under the regulations, everyone knew—and Attorney General Merrick Garland made very clear—that it was going to become public. Under the special counsel regulations, it is supposed to be “a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.” Under circumstances in which the report is sure to be a public one, as Rosenberg also argues, a certain degree of circumspection about repeating what are essentially Trump campaign talking points concerning Biden’s memory was no doubt warranted.
This is especially true where the memory failures in question do not immediately concern the facts of the case but concern highly personal matters like the death of Biden’s son.
Comparison with Trump
So how is Biden’s conduct different from Trump’s?
With respect to the underlying behavior, it’s actually not all that different. But the evidence proving Trump’s misconduct is far stronger than the evidence of Biden’s, and the evidence that Trump was immediately involved in the removal of the documents from the White House, in particular, is vastly stronger. That said, in both cases, the volume of classified material was significant, the storage at unsecured facilities was reckless, and classified material was shared with individuals for reasons of personal promotion. On each of these points, Trump’s version of the offense was more flamboyant than Biden’s; he shared material more often with more different people, for example. And storing material at a club with members circulating through it is arguably more reckless than doing so in a private home from which the public is excluded. That said, the categories of behavior are generally similar.
The difference—and it is a huge one—arises out of the wildly differing reactions to the discovery of the materials. In Biden’s case, the matter was self-reported, and the cooperation with authorities was total. In Trump’s case, the result of the National Archives’s efforts to recover the information was a campaign of obstruction, lies, and obfuscation. Without these, charges never would have materialized. The Trump case was at bottom an obstruction case from the outset.
By contrast, the story of the Biden investigation is actually the story of Biden’s cooperation with it. The investigation was launched in the first place because Biden’s lawyers reported that they had found marked classified materials in his possession. They then searched further and found more. They also allowed FBI searches to recover the rest. Hur candidly details the extent of Biden’s cooperation, without which—quite simply—the investigation likely never would have begun. It culminated with a lengthy interview with Biden. Quite apart from the merits of any underlying case, situations of self-reporting and full cooperation and consensual searches almost never give rise to prosecution.
Contrast that with Trump’s behavior in the Mar-a-Lago case, and the reason for the disparate outcomes become clear. Trump did not return the material voluntarily and submit to an investigation. He hid material. He had his lawyers lie to investigators. It required a search warrant to recover a great deal of the classified material—and prosecutors are still not sure they recovered all of it. There were repeated acts of obstruction that involved several other people who worked at Mar-a-Lago. These are acts that prosecutors will indict irrespective of the merits of the underlying crime.
What Should Be Done?
The story Hur tells speaks to two policy problems that are larger than Biden and that really need to be addressed. The first is the problem of the difficulty Biden’s staff had when he was vice president recovering and storing the classified material he used in non-secure locations. There is nothing illegal or improper about this behavior on Biden’s part; the vice president works everywhere and he is not covered by the normal rules of handling classified material. The problem is a staffing issue. When the vice president reads classified briefing material at home, who will make sure it’s stored properly? When he travels with it and takes it to Delaware—which he is entitled to do—who will make sure it is recovered and returned to a proper storage location?
A second policy issue involves Biden’s diaries. Biden is correct that other presidents and vice presidents before him have treated their personal diaries, classified information and all, as personal property and taken them with them when they leave office. That said, storing diaries full of highly sensitive material in unsecured locations is completely unacceptable—whatever the property interests may be in the books themselves. An expectation that the National Archives becomes the custodian of such material, or that it builds appropriate storage for it at the houses of former presidents and vice presidents seems appropriate. And more broadly, there clearly needs to be a better process for making sure classified material doesn’t leave with former presidents and vice presidents during transitions.
But there’s a level here that is not about policy. It is about behavior. And it’s behavior for which Biden needs to take responsibility. Biden struck a defiant tone in response to the report, angry not merely at the suggestion that his memory was flawed but at the very notion that he had mishandled classified material. During the press conference Biden held following the release of the report, he insisted, “I did not share classified information. I did not share it … [w]ith my ghostwriter, I did not. Guarantee you, I did not.”
The facts of the report belie his indignance. Biden may not imagine himself as the sort of man who mishandles classified material, but he did, in fact, do so. And he should acknowledge that. As former CIA Acting Director Michael Morell put it this weekend on CBS’s Face the Nation:
So, I agree, 100 percent, that we need a new policy for how this is done at the end of administrations. A hundred percent. I think he needs to go a little bit further in the apology. I think he needs to say, I should not have had this material, I put national security at risk. I apologize to the American people for that. I apologize to the intelligence community, in particular to those CIA officers who put their lives at risk to collect some of it. There was CIA material in here. And it’s not going to happen again. And I’m going to make sure of that by making changes. A more full- throated apology.
Such a statement would further distinguish Biden’s case from Trump’s.
– Matt Gluck, Benjamin Wittes, Published courtesy of Lawfare.
