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Special Counsel Robert Hur concluded in his report that "criminal charges were not merited for President Biden's careless handling of classified documents."
After that opening sentence in the executive summary of the Special Counsel's Report, it's all downhill for Biden. In fact, the Special Counsel's Report is essentially a complete indictment of President Biden for his mishandling of sensitive records, minus the actual indictment.
The Report concludes that "President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen," including "marked classified documents about military and foreign policy in Afghanistan, and notebooks containing Mr. Biden's handwritten entries about issues of national security and foreign policy" which the government "recovered ... from the garage, offices, and basement den in ... Biden's Wilmington, Delaware home."
Of Hur's entire 345-page report, though, perhaps the most surprising conclusion is contained in just a single word: "willful."
For most of the special counsel's investigation, there was a sense that Joe Biden may have acquired sensitive materials, but that it was inadvertent, or unintentional. Back in January of 2023, Biden himself said he was "surprised to learn" that documents had been discovered at his Washington think tank office. Biden White House Counsel Richard Sauber expressed confidence that "these documents were inadvertently misplaced." At the time, many accepted the President and his staff at their word, and reported that "Biden's lapses appear more accidental."
For over a year now, this was one of—but not the only—key distinctions made between Biden's classified documents, and Trump's classified documents: that Trump intentionally took the documents, and Biden's lapses were inadvertent.
But apparently they weren't inadvertent. The lapses were apparently willful. And when it comes to determining criminality in classified documents criminal cases, willfulness is everything.
For example, Donald Trump has been indicted in a Florida federal court on 32 counts of "willful retention of national defense information." He's not charged with "inadvertent" retention. Nor is he charged with "accidental" retention. He is accused of "having unauthorized possession of, access to, and control over documents relating to the national defense," and "willfully retain[ing] the documents and fail[ing] to deliver them" back to the U.S. government. The mental element of that crime is Trump's willfulness.
Of course, there remain major differences between what Trump and Biden did with the documents. They are relevant because the classified documents criminal statutes don't just focus on a person's state of mind when they acquired the documents. The crimes often depend on whether or not they compounded the problem by willfully and improperly keeping the documents (or concealing them, or even destroying them). Much of Trump's alleged criminal conduct is tied to what he supposedly did after he knew he had classified and sensitive information: obstruct, mislead, and conceal. Biden did himself a tremendous service when he "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," according to the Report.
Ordinarily, when a suspect cooperates fully with police investigating him, gives consent to search, and evidence of his criminal conduct is found as a result, that gets the suspect in more—not less—trouble. After all, cooperation with a law enforcement investigation usually comes after the crime: intent to cooperate really has nothing to do with intent to commit the original crime. But here, that cooperation was a direct factor in Hur's conclusion that there was no case beyond a reasonable doubt against Biden.
For example, the Report concludes that "Biden's cooperation with [the] investigation will likely cause some jurors to conclude that the Afghanistan documents were in his Delaware home by mistake ... Many will conclude that a president who knew he was illegally storing classified documents in his home would not have allowed a search of his home to discover those documents and then answered the government's questions afterwards."
This is an exceedingly rare situation where post-conduct cooperation with authorities was a factor in determining whether there was a crime to begin with. That's not how it works on real life television documentary series like The First 48 or Cops. There, finessing a suspect's consent to search his home is considered good police work. The suspect's cooperation doesn't exonerate the suspect—it usually convicts him.
And yet, Biden's cooperation was a factor in Hur's decision not to charge.
But one of the other factors is perhaps the most shocking. Hur concludes that he could not prove his case essentially because Biden is apparently too old, forgetful, and therefore sympathetic. "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 prosecutors wrote.
Don't get me wrong: I applaud a federal prosecutor considering all the facts in deciding whether to charge a case. I've just never seen a prosecutor appear to conclude all the elements of a crime are present, and then decide not to prosecute because the defendant would be too, well, feeble-minded.
If Biden and the White House deem the Hur Report to be a win, it is literally only a win in the first sentence: no charges. After that, it's a huge loss.
Danny Cevallos is an NBC News and MSNBC Legal Analyst and a criminal defense attorney.
The views expressed in this article are the writer's own.
