Biden’s Justice Department Just Handed the Trump Campaign a Gold Mine

On claims Biden misused classified documents, there will be no legal consequences—but damning political ones look likely.

Andrew Harnik / Associated Press

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On Thursday afternoon, the US Department of Justice special counsel’s office released its long-awaited report on the investigation into President Joe Biden’s alleged retention of classified documents. 

The gist of the 388-page document is clear: the special counsel uncovered evidence that Biden willfully retained and disclosed classified materials after his vice presidency, but determined that no criminal charges are warranted.

But while Biden will not face legal problems as a result of the probe, he will certainly face political ones. Special Counsel Robert Hur depicts the 81-year-old Biden—with some degree of editorializing—as an octogenarian struggling to remember basic facts. 

“Biden’s recorded conversations with [his ghostwriter] from 2017 are often painfully slow, with Mr. Biden struggling to remember events and straining at times to read and relay his own notebook entries,” wrote Hur, who was selected by Biden’s Attorney General Merrick Garland but previously appointed as a US Attorney by former president Donald Trump. “He 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?’). He did not remember, even within several years, when his son Beau died.”

The descriptions of Biden’s declining memory retention provided part of the basis for declining to charge him criminally. 

“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 says. “Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt.”

The White House said that the “inappropriate criticisms of the President’s memory are inaccurate, gratuitous, and wrong.” Biden himself noted that the five hours of in-person interviews he participated in to satisfy the probe took place on October 8th and 9th of last year, “even though Israel had just been attacked on October 7th and I was in the middle of handling an international crisis.”

But, despite those defenses, the damage is likely done.

“It’s not just Biden’s worst day as president,” says a Democratic strategist close to the White House granted anonymity to discuss the situation candidly. “It’s Trump’s best day since Biden has been president.”

Hur’s reasoning for not charging Biden is a gold mine for Republicans bolstering one of 77-year-old Trump’s favorite talking points: that Biden is unfit to serve a second term.

Indeed, the attacks from the right started immediately, with some GOP accounts sharing examples of recent occasions in which Biden has jumbled words. “I said I’m gonna be a president for everybody, whether you live in a red state or a green state!” one clip showed.

Many Trump surrogates also complained that the Biden-led Justice Department letting Biden off without criminal charges is a double standard considering the grievances Democrats have expressed over Trump’s handling of classified documents. But the special counsel’s office did take the initiative to distinguish differences between the classified document allegations against Biden versus the related criminal charges Trump faces.

“[A]fter being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it,” the special counsel’s office wrote. “In contrast, Mr. Biden 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.”

The best case for the president is that people spend more time talking about how Biden kept Afghanistan documents in a “badly damaged box surrounded by household detritus.” The worst, and more likely, case is that pundits and political opponents talk more about a major reason Biden wasn’t charged—because of Hur’s perception of Biden’s mental faculties.

“I think an indictment would’ve been better politically,” said the Democratic strategist.

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