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In one of the more bizarre political responses to having a classified document investigation not resulting in felony charges against President Biden because of “poor memory,” Biden’s team legal challenges the prosecutors’ characterization of Biden’s memory. 

Translated - the poor memory disqualified the sitting president from prosecution because that finding diminishes the definition of “willful intent” in a court of law, but, because his poor memory could hurt Biden politically, his team pushed back on that characterization .

Nevertheless, Special Counsel Robert Hur announced Thursday that he will not be recommending charges against President Joe Biden for his handling  of classified documents while out of office, despite finding evidence that Biden "willfully retained" materials.

"We conclude that no criminal charges are warranted in this matter," reads Hur's report. "We would conclude the same even if there was no policy against charging a sitting president. Our investigation uncovered evidence that President Biden willfully retained and disclosed classified information after his vice presidency when he was a private citizen,”the report reads.

The materials included (1) marked classified documents about military and foreign policy in Afghanistan, and (2) notebooks containing Biden's handwritten entries about issues of national security and foreign policy implicating sensitive intelligence sources and methods.

The materials were found in "the garage, offices, and basement den in Mr. Biden's Wilmington, Delaware home," the report further notes.

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Still, Hur's office felt that the "evidence does not establish Mr. Biden's guilt beyond a reasonable doubt."

Hur believed that at trial Biden could come across not only as "sympathetic," but forgetful and not capable of the willfulness required to convict.

"We have also considered that, 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 report said. "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."

Attorneys for Biden blasted the special counsel's characterization of the president's memory and recollections during his two-day interview with investigators in October.

"We do not believe that the report's treatment of President Biden's memory is accurate or appropriate," wrote Richard Sauber, special counsel to the president, and Bob Bauer, a personal attorney for the president. "In fact, there is ample evidence from your interview that the President did well in answering your questions about years-old events over the course of five hours."

The attorneys noted that the interviews took place in the midst of the Oct. 7 attack on Israel, when Biden was “busy conducting calls” with heads of state, Cabinet members, members of Congress, and meeting repeatedly with his national security team

"It is hardly fair to concede that the President would be asked about events years in the past, press him to give his ''best" recollections, and then fault him for his limited memory," they wrote.

Biden, speaking Thursday afternoon in Virginia, noted the differences between his case and Trump's, and how the special counsel in his probe had decided not to press charges.

"This matter is now closed," Biden said.

Hur's report concluded investigators found documents marked classified from as far back as the 1970s, including a box labeled "International Travel 1973-1979" containing materials from Biden's trips to Asia and Europe that included "roughly a dozen marked classified documents that are currently classified at the Secret level.” 

Among the classified documents Biden retained were materials documenting his opposition to the troop surge in Afghanistan, including a classified handwritten memo he sent President Obama over the 2009 Thanksgiving holiday, which FBI agents recovered from Biden's Delaware home and its garage.

Asked in his interview about handwriting on a folder containing marked classified documents about Afghanistan, the report said Biden "identified the handwriting as his, but said he recalled nothing about how the folder or its contents got into his garage."

The report lays out that Biden, in writing his 2007 and 2017 memoirs, worked with a ghostwriter, and in a recorded conversation with the ghostwriter a month after he left office, referenced the 2009 memo -- saying that he had "just found all the classified stuff downstairs."

At that time, Biden was renting a home in Virginia, the report says, and met the ghostwriter there to work on his second memoir. He moved out of the Virginia home in 2019 and consolidated his belongings in Delaware, where the report says FBI agents later found the documents in his garage.

The report concluded that “evidence supports the inference," that when Biden said the comment in 2017, he "was referring to the same marked classified documents about Afghanistan that FBI agents found in 2022 in his Delaware garage."

Approximately two dozen classified documents were found at Biden's personal home and office.

The records in question date back to Biden's time as vice president, and at least some include "top secret" markings, the highest level of classification.

The report stated that "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."

Investigators interviewed as many as 100 current and former officials, including Secretary of State Antony Blinken, former White House Chief of Staff Ron Klain, and Hunter Biden, the president's son.  

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