Classified documents case sparks fresh questions about Joe Biden's competency

US president Joe Biden won’t face criminal charges in classified documents case, but the line he is an ‘elderly man with a poor memory’ will linger, writes David Smith

US President Joe Biden arrives on Air Force One at Stansted Airport in Essex, ahead of his meetings with Prime Minister Rishi Sunak and King Charles III. Picture date: Sunday July 9, 2023.

Joe Biden is not a crook. But there may be something more unforgivable in the court of public opinion. The US president is old.

That is what will linger from Joe Biden’s pyrrhic victory at the hands of the US justice department on Thursday. 

True, he will not face criminal charges over his handling of highly classified documents when a private citizen, despite an awkward photo revealing papers stashed in a broken cardboard box in his garage, according to special counsel Robert Hur.

But most striking among the reasons that Hur gave for his decision was that 81-year-old 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 special counsel had delivered an attack line to Donald Trump’s election campaign on a silver platter. 

Only in America could Trump gain a political lift from 91 criminal charges even as his opponent suffers a political setback from not being charged at all.

And Trump, who is 77, is at least as likely to speak gobbledygook as Biden, recently confusing his Republican opponent Nikki Haley with former House speaker Nancy Pelosi.

Yet as in so many other areas, he is somehow given a free ride, in part because he is a white hot ball of anger who just seems younger, in part because his age seems trivial compared to his alleged crimes and misdemeanours, including a far more serious classified documents case.

Only in America could Trump gain a political lift from 91 criminal charges even as his opponent suffers a political setback from not being charged at all. File picture: Alex Brandon/AP

But Hur still wrote that Biden’s memory was “significantly limited” when he was interviewed by members of his prosecution team. 

It “appeared hazy” regarding the debate about US forces in Afghanistan and could not recall the years when he was vice-president.

Most startlingly, Biden “did not remember, even within several years, when his son Beau died”.

It is all fodder for Republicans, who have been working around the clock to pin Biden to the wall as a babbling Methuselah who doesn’t know what day of the week it is.

Alex Pfeiffer, communications director for Make America Great Again Inc, a pro-Trump Super Pac, said: 

“If you’re too senile to stand trial, then you’re too senile to be president. Joe Biden is unfit to lead this nation.”

Nikki Haley, a Republican candidate for president, posted on social media: 

“Joe Biden can’t remember major events in his life, like when he was vice-president or when his son died.”

That is sad, but it will be even sadder if we have a person in the White House who is not mentally up to the most important job in the world.

Biden’s lawyers were quick to dismiss the report as a hatchet job by a partisan hack swerving outside his lane. 

They accused Hur, a Republican who served in senior roles at the justice department during the Trump administration, of overreach and “investigative excess”.

Unfortunately that defense had already been undercut by Biden himself.

Speaking in Nevada on Sunday, he apparently confused François Mitterrand, the former French president who died in 1996, with France’s current president, Emmanuel Macron, while recalling European worries over US democracy and the January 6 insurrection in 2021.

Then, in New York on Wednesday, Biden referred to former German chancellor Helmut Kohl — who died in 2017 — as talking to him about the same issue when he apparently meant Angela Merkel.

A day later the White House press secretary, Karine Jean-Pierre, tried to neutralise the gaffes by pointing to recent examples of other public figures — including the House speaker, Mike Johnson, and Fox News host Sean Hannity — mixing up names.

She told reporters: “And, look — you know, look, as it relates to the names and — and what he was trying to — you know, what he was trying to — to say, look, many people — elected officials, many people — you know, they tend — they can — they can mis- — misspeak sometimes. Right?”

Elusiveness of US president Joe Biden

Biden, meanwhile, is not helping his own case. He turned down the chance to do a TV interview before tomorrow’s American football Super Bowl, a platform that reaches millions of viewers who might not be following politics closely.

He has sat for a quarter as many interviews as Trump at this point in his presidency, and one-fifth as many as Obama, according to the White House Transition Project’s Martha Kumar.

Such elusiveness gives the impression of a man whose “handlers” believe that he must be coddled and shielded for his own health and gaffe avoidance.

There are eerie echoes of 2016 when then FBI director James Comey declined to recommend charges against Democratic presidential nominee Hillary Clinton over her use of a personal email system when she was secretary of state but rebuked her as “extremely careless”.

Comey reopened his investigation 11 days before the election; Clinton has blamed him for her shocking loss to Trump.

What those Comey interventions did was feed a pre-existing narrative that Clinton, wife of former president Bill Clinton, came with a whiff of corruption, an elitist assumption that the rules governing everyone else did not apply to her.

Now special counsel Hur has fed a pre-existing narrative that Biden is too old for the job.

Should that solidify in the public mind as his defining characteristic, it will be a disaster for the Biden’s re-election — and the battle to preserve US democracy.

What the special counsel report found

The special counsel report released this week found evidence that Joe Biden willfully retained and shared highly classified information when he was a private citizen, including about military and foreign policy in Afghanistan, but concluded that criminal charges were not warranted.

The report from special counsel Robert Hur resolves a criminal investigation that had shadowed Biden’s presidency for the last year. 

However, its bitingly critical assessment of his handling of sensitive government records and unflattering characterisations of his memory will spark fresh questions about his competency and age that cut at voters’ most deep-seated concerns about his candidacy for re-election.

Yet even as Hur found evidence that Biden willfully held onto and shared with a ghostwriter highly classified information, the special counsel devoted much of his report to explaining why he did not believe the evidence met the standard for criminal charges, including a high probability that the Justice Department would not be able to prove Biden’s intent beyond a reasonable doubt, citing among other things an advanced age that they said made him forgetful and the possibility of “innocent explanations” for the records that they could not refute.

“I did not share classified information,” Biden insisted. “I did not share it with my ghostwriter.” 

He added he wasn’t aware how the boxes containing classified documents ended up in his garage.

Hur, a former US attorney in the Trump administration, was appointed by attorney general Merrick Garland as special counsel in January 2023 following an initial discovery by Biden staff of classified records in Washington office space.

Special counsel Robert Hur has fed a pre-existing narrative that Biden is too old for the job. File picture: Mark Wilson/Getty Images

Subsequent property searches by the FBI, all coordinated voluntarily by Biden staff, turned up additional sensitive documents from his time as vice president and senator.

Hur’s report said many of the documents recovered at the Penn Biden Center in Washington, in parts of Biden’s Delaware home, and in his Senate papers at the University of Delaware were retained by “mistake”.

Biden could not have been prosecuted as a sitting president, but Hur’s report states that he would not recommend charges against Biden regardless.

“We would reach the same conclusion even if department of justice policy did not foreclose criminal charges against a sitting president,” the report said.

But investigators did find evidence of wilful retention and disclosure of a subset of records found in Biden’s Wilmington, Delaware, house, including in a garage, office, and basement den.

The files pertain to a troop surge in Afghanistan during the Obama administration that Biden had vigorously opposed. He kept records that documented his position, including a classified letter to Obama during the 2009 Thanksgiving holiday.

Documents found in a box in Biden’s Delaware garage have classification markings up to the Top Secret/Sensitive Compartmented Information Level and “other materials of great significance to him and that he appears to have personally used and accessed”.

Hur, though, wrote that there was a ”shortage of evidence” to prove that Biden placed the documents in the box and knew they were there.

This image, contained in the report from special counsel Robert Hur, and annotated by source, shows a damaged box where classified documents were found in the garage of President Joe Biden in Wilmington, Delaware, during a search by the FBI on December. 21, 2022. Picture: US Justice Department/AP

Some of the classified information related to Afghanistan was shared with a ghostwriter with whom he published memoirs in 2007 and 2017.

As part of the probe, investigators reviewed a recording of a February 2017 conversation between Biden and his ghostwriter in which Biden can be heard saying that he had “just found all the classified stuff downstairs.”

Prosecutors believe Biden’s comment, made at a time he was renting a home in Virginia, referred to the same documents FBI agents later found in his Delaware house.

Though Biden sometimes skipped over presumptively classified material while reading notebook entries to his ghostwriter, the report says, at other times he read aloud classified entries “verbatim”.

While the report removes legal jeopardy for the US president, it is nonetheless an embarrassment for Biden, who placed competency and experience at the core of his rationale to voters to send him to the Oval Office.

It says that Biden was known to remove and keep classified material from his briefing books for future use and that his staff struggled and sometimes failed to get those records back.

Even so, Hur took pains to note the multiple reasons why prosecutors did not believe they could prove a criminal case beyond a reasonable doubt.

Those include Biden’s “limited memory” both during his 2017 recorded conversations with the ghostwriter and in an interview with investigators last year in which, prosecutors say, he could not immediately remember the years in which he served as vice president.

US president Joe Biden placed competency and experience at the core of his rationale to voters to send him to the Oval Office. Picture: Evan Vucci/AP

Hur said it was possible Biden could have found those records at his Virginia home in 2017 and then forgotten about them soon after.

“Given Mr Biden’s limited precision and recall during his interviews with his ghostwriter and with our office, jurors may hesitate to place too much evidentiary weight on a single eight-word utterance to his ghostwriter about finding classified documents in Virginia, in the absence of other, more direct evidence,” the report says.

“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,” investigators wrote.

In addition, prosecutors say, Biden could have plausibly believed that the notebooks were his personal property and belonged to him, even if they contained classified information.

In an interview with prosecutors, the report said, Biden was emphatic with investigators that the notebooks were “my property” and that “every president before me has done the exact same thing”.

Biden’s personal and White House lawyers strongly objected to the characterisations of Biden in the report and to the fact that so much derogatory information was released about an uncharged subject like the president.

Biden’s personal attorney Bob Bauer accused the special counsel of violating “well-established’ norms and “trashing” the president.

“The special counsel could not refrain from investigative excess, perhaps unsurprising given the intense pressures of the current political environment,” Mr Bauer said in a statement

Whatever the impact of those pressures on the final report, it flouts department regulations and norms.

But a public outcome was basically sealed once Garland appointed a special counsel.

Regulations require special counsels to produce confidential reports to the attorney general at the conclusion of their work. 

Those documents are then generally made public, even if they contain unflattering assessments of people not criminally charged.

• Associated Press

Joe Biden's gaffes 

It's been a tough week for Joe Biden.

First, he mixed up French president Emmanuel Macron with Francois Mitterand, who died in 1996, during a rally in Las Vegas while recounting a G7 meeting in Cornwall in June 2021.

“Mitterrand from Germany – I mean, from France – looked at me and said, ‘You know, what... why… how long you back for?” 

A few days later in New York, he claimed to have discussed the Capitol riot with German chancellor Helmut Kohl, who passed away in 2017, four years before it took place. He meant Angela Merkel.

Joe Biden mixed up French president Emmanuel Macron with Francois Mitterand, who died in 1996, during a rally in Las Vegas while recounting a G7 meeting in Cornwall in June 2021.

Then after a spirited response to the damaging special counsel report during which he told reporters “my memory is fine,” Biden mistook Mexico and Egypt, in a response to a question on the Israel-Gaza conflict.

Back in February, he struggled to recall the name of the terror group Hamas during a press conference.

In July 2023, he took a now very well-publicised stumble while boarding Air Force One, ignoring the “watch your step” warning on the steps.

In June 2023, he mixed up Ukraine and Iraq. When asked a question by reporters on the war in Ukraine he responded by saying that President Putin was “clearly losing the war in Iraq”.

In June 2023, he took another slip and fall while on stage at the Air Force Academy graduation ceremony.

In April 2023, during an emotional and personal trip to the home of his ancestors in Ireland, Mr Biden made international headlines for the wrong reasons.

Pointing to former rugby international Rob Kearney, who is a distant cousin, the president mixed up the All-Blacks with the hated Black and Tans.

 “See this tie I have, this shamrock tie?” Mr Biden said.

“It was given to by one of these guys right here, who’s a hell of a rugby player who beat the hell out of the Black and Tans.”