Concerning the “Report on the Investigation Into Unauthorized Removal [and] Retention of Classified Documents,” two sources seriously damaged President Biden. The first was by the special counsel who wrote the Report, Robert Hur, a Republican. Hur went far beyond his mandate, authority, and the Department of Justice’s rules to proclaim that Biden was “a well-meaning, elderly man with a poor memory.” This gratuitous and politically harmful statement sounded like something from the Trump campaign.
The mainstream media did the other damage. In their online forum, Just Security, Ryan Goodman and Andrew Weissmann analyze the Report of Special Counsel Robert Hur and show how the press grossly mischaracterized it.
“The press incorrectly and repeatedly blast out that the Hur report found Biden willfully retained classified documents, in other words, that Biden committed a felony; with some in the news media further trumpeting that the Special Counsel decided only as a matter of discretion not to recommend charges.”
For example, the New York Times reported that “the special counsel, Robert K. Hur, released a report stating that, although Mr. Biden had ‘willfully’ retained and disclosed classified material after his vice presidency had ended, no criminal charges were warranted.”
That is different from what the Hur report says. Here’s an excerpt from the Executive Summary: “Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen…However, for the reasons below, we conclude that the evidence does not establish Mr. Biden’s guilt beyond a reasonable doubt.” Of course, Kur only stated the last part on page six.
Here are some headlines from the media.
The Hill: Special counsel finds Biden ‘willfully’ retained classified documents, no charges filed.
ABC News: No charges for Biden after Special Counsel probe into improper handling of classified documents
CNN: Special counsel report concludes Biden willfully retained classified information but will not face charges.
PBS News Hour: Biden willfully withheld classified docs but will not be charged, special counsel says.
CNBC: Joe Biden ‘willfully retained’ classified files, investigation finds.
The Los Angeles Times and USA Today were among many other media carrying similar headlines.
With these headlines, one would think that Biden committed a felony; however, according to the details of the Report, that was doubtful. Glenn Kessler of The Fact Checker discussed the main issues investigated by the Special Counsel and the Report’s conclusions. I summarize them below.
Notebooks used for a memoir.
Bottom Line: This is the strongest example of Biden possibly mishandling classified information. But the Report concludes that the case would be weak, given that it was widely known that Reagan kept several such notebooks and that Biden generally appeared to be careful to avoid repeating classified information to someone not cleared to receive it.
Afghanistan documents
Bottom Line: This is a memo VP Biden wrote about a policy toward Afghanistan, and it may no longer be that sensitive.
Handwritten Thanksgiving memo
Bottom Line: The Report concludes that Biden did not think this memo was classified and probably was not.
Classified materials found at Penn Biden Center
The Report says there is no evidence that Biden reviewed or moved the documents.
Bottom Line: The Report exonerates Biden and blames staff error.
Classified materials found at the University of Delaware
In 2011, Biden donated 2,000 boxes of senatorial papers to the University of Delaware.
Bottom Line: The Report exonerates Biden and blames staff error.
Goodman and Weissmann suggest a correct and more informative executive summary of the report, which would include something like the following:
We have concluded that there is not a prosecutable case against Biden. Although there was a basis to open the investigation since classified documents were found in Biden’s homes and office space, that is insufficient to establish a crime was committed. The illegal retention or dissemination of national defense information requires that he knew of the existence of such documents and that they contained national defense information. It is not a crime without those additional elements. Indeed, we have found several innocent explanations to which we found no contrary evidence to refute them and found affirmative evidence in support of them.