A closer look at the Biden special counsel report: Do the headlines match the evidence?

(WASHINGTON) — When special counsel Robert Hur’s report on his yearlong investigation into President Joe Biden’s handling of classified materials was made public last week, it said no charges were warranted because the evidence wasn’t sufficient to support a conviction.

That might have been the end of it as a legal matter but two sentences near the top of his executive summary, the 14-page recap of the massive 388-page document, created an enduring political firestorm.

Seized on by the news media in the immediate scramble to report the news — and by Republicans eager to capitalize — was the sentence: “Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.”

And then came Hur’s politically damaging suggestion that, in deciding whether to prosecute, he had considered that Biden would likely present himself to a jury as a “sympathetic, well-meaning, elderly man with a poor memory.”

A closer look at the rest of the report, though, shows despite Hur’s “willfully retained and disclosed” assertion there were other innocent explanations that couldn’t be ruled out, and language about Biden’s apparent memory lapses didn’t contain much context, leading to questions about their relevance.

Norm Eisen, a senior fellow at the Brookings Institution who served as special counsel to the House Judiciary Committee from 2019 to 2020, told ABC News Hur’s executive summary stands “in tension” with the rest of the report.

“There’s a leap in the executive summary from the evidence, and those kinds of leaps and editorializing are contrary to the most fundamental principles of how prosecutors are supposed to operate when addressing uncharged conduct,” Eisen said, describing the summary as “misleading.”

“Extraordinary care is called for precisely because that can be so damaging,” Eisen added.

Some observers have compared the matter to the controversy sparked by then-FBI Director James Comey’s condemnation of Hillary Clinton as “extremely careless” while announcing his decision in the middle of the 2016 election campaign not to recommend charging her for use of a private email server when she was secretary of state. Though in this case, Hur as a special counsel was mandated to explain his findings in a report to Attorney General Merrick Garland, who vowed to make it public for transparency.

Here is a closer look at what else Hur said in his report.

Retention of documents

Classified materials relating to Biden’s time as vice president and as a senator were found at three locations: Biden’s Delaware home, the Penn Biden Center in Washington and the University of Delaware.

For the documents found at the Penn Biden Center and the University of Delaware, Hur said the evidence suggested they were likely sent and kept there by mistake after being packed by staff.

Those found at Biden’s Delaware home presented the strongest possible criminal case, Hur said. There, investigators found marked classified documents about a troop surge to Afghanistan in 2009 in a damaged box as well as Biden’s handwritten notebooks that Hur said contained classified information.

Even more specific, because Biden was president when the materials were found in his Delaware home, Hur concentrated on a period of time immediately after the Obama administration when investigators believed Biden (then a private citizen) may have stored those materials at a home he was renting in Virginia.

In February 2017, according to tape recordings from the ghostwriter of Biden’s memoir, Biden said he “just found all this classified stuff downstairs” as the two men spoke about a handwritten memo Biden had sent to President Barack Obama over the Thanksgiving holiday in 2009 advising against a troop surge to Afghanistan.

Hur said there was evidence that “supported the inference” that when Biden said that to the ghostwriter “he was referring to the Afghanistan documents.” That’s because, Hur said, other files in the box where the Afghanistan documents were eventually found were dated as being created in the weeks prior to that conversation, making it appear that Biden had recently accessed the box.

But Hur said there was no photographic evidence placing the Afghanistan documents at the Virginia home, and their path from the Obama administration to Biden’s Delaware home remained unclear. Other innocent explanations couldn’t be ruled out, like the possibility the documents were brought to Delaware during the vice presidency and forgotten about.

“While it is natural to assume that Mr. Biden put the Afghanistan documents in the box on purpose and that he knew they were there, there is in fact a shortage of evidence on these points,” the report read. “We do not know why, how, or by whom the documents were placed in the box. We do not know whether or when Mr. Biden carefully reviewed the box’s contents.”

“We find the evidence as a whole insufficient to meet the government’s burden of proving that Mr. Biden willfully retained the Afghanistan documents in the Virginia home in 2017,” he added. “That is, evidence falls short of beyond a reasonable doubt.”

On the issue of Biden’s handwritten notebooks, Hur wrote the “evidence shows convincingly” that Biden knew they contained classified information, pointing to his years in government service and subsequent familiarity with protocols of handling classified material as well as his comments to the ghostwriter to be careful because the entries he was reading aloud may be classified.

But Hur said the evidence wouldn’t “meet the government’s burden at trial.” The special counsel expected Biden’s defense would focus on his understanding his notebooks (which contained notes about official meetings but also personal details, like “gut-wrenching” entries about his son Beau’s death) were his own personal property, as was the case of Ronald Reagan’s diaries, and that “enough evidence supports this defense to establish reasonable doubt.”

Disclosure of classified information

This portion of the report focuses heavily on Biden’s conversations with his ghostwriter, Mark Zwonitzer, as they worked on his memoir “Promise Me, Dad.”

Hur stated that their investigation found Biden read near-verbatim entries from his notebooks containing classified information to Zwonitzer on three occasions, according to tape recordings and transcripts obtained from Zwonitzer. Two of those times he read notes of a meeting that occurred in the Situation Room in 2015.

The third time, the report said, Biden read an entry recounting a National Security Council meeting that occurred in 2014. During this conversation, Biden warned Zwonitzer some of the information may be classified, but he also stressed he was “not sure.”

“Mr. Biden should have known that by reading his unfiltered notes about classified meetings in the Situation Room, he risked sharing classified information with his ghostwriter,” Hur wrote. “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.”

Hur also noted there is no classified material in the published memoir.

Biden’s mental acuity

Sprinkled throughout the report are references to Biden’s state of mind.

These are among the most controversial aspects of the report. Hur’s critics call them “gratuitous” while his supporters say they are part of establishing Biden’s intent and whether he acted willfully.

The White House and some legal experts have suggested that language was politically motivated, stating conclusions only a medical professional was qualified to make.

In his executive summary, Hur described Biden’s memory as being “significantly limited” both in his five hours of interview with the special counsel in October 2023 and in his conversations with his ghostwriter in 2017.

Later, Hur wrote that Biden’s memory in the interview was “worse.” According to the special counsel, Biden “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 special counsel continued: “He did not remember, even within several years, when his son Beau died,” and “his memory appeared hazy when describing the Afghanistan debate that was once so important to him.”

Biden, choking back emotion, responded to the detail about Beau’s death in his news conference last week.

“How in the hell dare he raise that?” Biden said, telling reporters that his first reaction to the question was that it was none of Hur’s business. It’s not clear, based on Hur’s report, how Beau came up as a topic in their interview.

But at another point in the report, Hur wrote that Biden’s state of mind when it came to his handwritten notebooks was “compelling” and “clear, forceful testimony.”

Biden’s attorneys highlighted the apparent “contrast” in a letter written to Hur ahead of the report’s release.

“The report uses highly prejudicial language to describe a commonplace occurrence among witnesses: a lack of recall of years-old events,” Richard Sauber and Bob Bauer wrote to Hur.

“You refer to President Biden’s memory on at least nine occasions — a number that is itself gratuitous. But even among those nine instances, your report varies,” they wrote. “It is one thing to observe President Biden’s memory as being ‘significantly limited’ on certain subjects. It is quite another to use the more sweeping and highly prejudicial language employed later in the report. This language is not supported by the facts, nor is it appropriately used by a federal prosecutor in this context.”

Hur and the Justice Department have yet to respond publicly to the criticism.

The context could become clearer, and questions answered, if House Republicans succeed in their demands for transcripts and audio recordings of Biden’s interview.

Hur is set to testify publicly at a House Judiciary Committee hearing on March 12, sources told ABC News.